Family Law Arbitration According to Institute of Family Law Arbitrators’ Rules
Ayşe Yasemin GısoldıArbitration which has a long history is a dispute resolution method generally preferred for commercial disputes. Today, studies are trying to extend the scope of disputes subject to arbitration, including family law arbitration. The Institute of Family Law Arbitrators (IFLA) was established in the United Kingdom for that purpose and has an important role in family law arbitration. For trials to proceed before the IFLA detailed and specialized rules for the settlement of financial and child-oriented disputes are used. The institute was established by experts in family law and arbitration law. The family law arbitration rules they established run parallel to general arbitration rules and differentiate family law arbitration from commercial arbitration by responding to the special needs of family law and taking secure steps with issues of a public nature. This paper contributes to the legal doctrine by analyzing the institute’s family law arbitration rules.
Aile Hukuku Hakemleri Enstitüsü Kuralları Uyarınca Aile Hukuku Tahkimi
Ayşe Yasemin GısoldıTarihsel açıdan kökeni çok eskiye dayanan tahkim kavramı genel olarak ticaret hukuku alanında tercih edilen bir uyuşmazlık çözüm yöntemi olmuştur. Günümüzde ise tahkime konu olabilecek uyuşmazlıkların kapsamının genişletilmesine yönelik çalışmalar yapılmaktadır. Bu bağlamda son yıllarda gündeme gelen hususlardan biri de aile hukuku tahkimidir. Birleşik Krallık’ta bu amaçla kurulmuş olan Aile Hukuku Hakemleri Enstitüsü de aile hukuku tahkiminde önemli bir yere sahiptir. Aile Hukuku Hakemleri Enstitüsü bünyesinde yürütülecek olan tahkim yargılamalarında finansal ve çocuklara dair uyuşmazlıkların çözümü kapsamlı ve konu özeline dair detaylı düzenlemelerden oluşan kurallar ışığında gerçekleştirilmektedir. Aile hukuku ve tahkim alanında uzman kişilerden oluşan enstitü ve bu kişiler tarafından hazırlanmış tahkime dair genel düzenlemelere paralel kurallar aile hukuku tahkimine ışık tutmak, aile hukuku tahkiminin ticari tahkimden farklılıklarını ortaya çıkarmak, aile hukukuna özgü gereksinimleri karşılamak ve özellikle kamusal niteliği olan hususlarda güvenli adımlar atmak adına son derece önemlidir. Çalışmamızın amacı bu kurum ve aile hukuku tahkim kurallarını inceleyerek doktrine katkı sağlamaktır.
In today’s world, although alternative dispute resolution methods are preferred for commercial disputes some countries are developing systems for the resolution of civil law disputes. In many countries, this has been and remains a long-discussed issue due to their legal system, public policy, the nature of disputes, their sociological background, citizens’ economic power, religious considerations, and many other reasons. Today, as a result of the regulations prepared over the last 20 years, family law arbitration has become an alternative dispute resolution method in some parts of the world. One of the most important examples of institutions working in the field of family law arbitration is the Institute of Family Law Arbitrators (IFLA). This paper examines its rules, its properties, and its system while discussing its advantages and disadvantages.
IFLA is a not-for-profit organization, created by the Chartered Institute of Arbitrators, the Family Law Bar Association, and the family lawyers’ group resolution, in association with the Centre for Child and Family Law Reform. IFLA has a dual system of family law arbitration. Disputes to be settled before IFLA can be categorized either as a financial dispute or a dispute about children. The two schemes are called the Financial Scheme and the Children’s Scheme. IFLA schemes were created by a collaboration between member organizations. IFLA has developed these two schemes to help parties resolve family law disputes quickly and cheaply, by using a flexible and less formal procedure than a regular court. Both schemes have their own arbitration rules and panel of arbitrators. Each scheme operates according to its own rules that have been specially designed to meet the particular needs of family arbitration for application by specialist arbitrators.
Once parties apply to IFLA the first step is determining the scheme to be applied. Here parties are free to decide; however, according to the rules, both the IFLA and the arbitrator appointed to resolve the dispute have the power to determine if the said dispute may not be subject to a proceeding under the chosen scheme. The two schemes have largely parallel regulations. However, sometimes, due to the nature of the disputes, there are some differences or detailed regulations that must be applied. In this paper, the rules about the scope of family law arbitration schemes will be examined in detail along with the arbitration procedure, the appointment of the arbitrator, the power of the arbitrator, the award or determination after the proceedings, the costs, and other important IFLA family law arbitration rules, together with a comparison of the two schemes. In this way, family law arbitration that is a relatively new legal notion will be introduced to Turkish doctrine.
