Haley v Haley: Family Law Arbitration and the New Frontier of Private Ordering
| Published date | 01 November 2021 |
| Author | Anna Heenan |
| Date | 01 November 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12638 |
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Modern Law Review
DOI:10.1111/1468-2230.12638
CASES
Haley v Haley:Family Law Arbitration and the New
Frontier of Private Ordering
Anna Heenan∗
Haley vHaley is required reading for anyone interested in family law dispute resolution or
issues of access to justice.The case concer ns family arbitration and,importantly,changes the test
for challenging arbitral awards,making it easier to do so.This is connected to concerns about
making arbitration more appealing in the family law context, which has implications for family
law dispute resolution more broadly.Whilst separating couples have always been encouraged to
settle outside of the court process, connected to an idea of private ordering, Haley marks a new
frontier.Until now private ordering was also intended to ensure substantively better outcomes.
This is no longer the case, and the attemptto divert more cases to arbitration in this judgment
may compound existing issues of access to justice.
INTRODUCTION
The recent case of Haley vHaley1is required reading for anyone interested in
family law dispute resolution or issues of access to justice.The case concerns
family arbitration and considers the test that should apply when challenging an
arbitrator’s decision. The judgmentisimpor tant forseveralreasons. Crucially,it
changes thetestforchallengingarbitralawards,makingiteasiertodoso.Thisis
connected to concerns about making arbitration more appealing in the family
law context,which has implications for family law dispute resolution more
broadly.Whilst separating couples have always been encouraged to settle outside
of the court process, connected to an idea of privateorder ing which is discussed
in thenext section, Haley marksan impor tant newfrontier. Whereas diverting
cases from court has always been an inherent concern of private ordering,until
now private ordering was also intended to ensure substantively better outcomes.
This is no longer the case,and, as will be discussed,attempts to divert more cases
to arbitration may compound existing issues of access to justice.
This article begins by outlining how ideas of private ordering have inuenced
family law dispute resolution to provide important context for understanding
∗Lecturer at Cardi University and Consultant at the Family Law Practice.With thanks to Louise
Austin, Roxanna Fatemi-Dehaghani, NatashaHammond-Browning, Andrew Lawrence, Jess Mant,
Huw Pritchard, Caer Smyth and SharonThompson for their insightful comments on earlier drafts of
this piece.
© 2021TheAuthor s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(6) MLR 1385–1398
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, providedtheor iginal workisproperly cited.
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