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19.12There are no reported cases that give specific guidance as to mediation or ADR in this jurisdiction. In
A Local Authority v PB and P,
1[2011] EWHC 502 (COP), [2011] COPLR Con Vol 166. Charles J was invited to comment on the issue of mediation or ADR but declined on the basis that this had not arisen in the facts of the case that he was considering.
19.13The use of ADR is far more established in the family courts. Some assistance can be found by analogy in the case of
AI v MT (alternative dispute resolution)2[2013] EWHC 100 (Fam), [2013] 2 FLR 371. Baker J approved a consent order which had been reached after a lengthy arbitration process by a separating couple overseen by the New York Beth Din. The principles he identified in the context of the family courts are of relevance in the Court of Protection:
•the court’s jurisdiction cannot be ousted by agreement between the parties;
•unless statute provides otherwise, the child’s welfare is the paramount consideration;
•respect for the practice and beliefs of all faiths and cultures does not oblige the court to depart from the welfare principle because this principle is ‘sufficiently broad and flexible to accommodate many cultural and religious practices’;
•it is always in the interests of the parties to try to resolve disputes by agreement if possible and the courts will encourage this but will be cautious not to endorse a process which might oust the jurisdiction of the court.
19.14In
S v S3[2014] EWHC 7 (Fam); [2014] 1 WLR 2299. Sir James Munby P considered the approach of the courts when there has been an arbitration award, in that case, under the Institute of Family Law Arbitrators Scheme (a not for profit organisation, conducting arbitrations in accordance with the Arbitration Act 1996). He observed that the fact that the parties had bound themselves to accept an arbitral award generated a ‘single magnetic factor of determinative importance’; and that in the absence of very compelling evidence to the contrary this should be determinative of the order made. In these circumstances the judge’s role was not to be ‘a rubber stamp. He is entitled but is not obliged to play the detective. He is a watchdog, but he is not a bloodhound or a ferret.’
4S v S at para 20, citing his own judgment in L v L [2008] 1 FLR 26. If an attempt is made to resile from an arbitral award, the court may be robust in case managing the dispute, and may in some cases simply make the order in any event. The President noted the increasing range of forms of ADR and the need for the courts to keep up with developments and the needs of litigants and advisers.