Arbitration and Mediation
I say this as both an Arbitrator and a Mediator.
Sometimes the mediation, Parents can become be stuck on a point of principle. As a mediator I cannot give advice. I cannot express a view. I will try different strategies to help my mediation clients to find their own solution. Sometimes, as hard as I try, my mediation clients simply cannot find a mutually acceptable solution.
This is not because my clients are being unreasonable. The other person might think so – but each has a strong view about what is in the best interests of their children.
There may still be a lot that they can agree on. However the point of principle that is in dispute can nag away and make it more difficult to find solutions on other matters and/or make it more difficult for them to work together more generally.
Avoiding Mediation Breaking down
Rather than the whole mediation collapsing, it is possible to use arbitration to resolve those nagging issues which cannot be negotiated to a conclusion.
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Mediation can then continue – and indeed can help the couple’s work through the implementation of the arbitrated decision/determination.
Without arbitration, the alternative might have been the whole mediation collapse.
A fair process which can be based on written submissions
Going to arbitration in this way does not necessarily involve a significant expense. It is possible for arbitration to take place without a face-to-face arbitration hearing. The arbitrator will make a decision based upon the written representations of both parents together with any relevant documentation that they send in support of their case.
I have prepared a set of standard directions which are based upon and compliant with the Family Law Arbitration Children Scheme – Arbitration Rules, which provide for an exchange of submissions and allowing each to respond to each other’s submissions. Where appropriate I will ask for more information from either or both.
I will provide a template statement which means that both will make their submissions in the same format. Whilst Arbitration Clients are strongly advised to seek independent legal advice before entering into arbitration (so that they are clear that arbitration is legally binding) I am conscious that not everyone can afford the services of a solicitor at all, or for all aspects of the case.
A paper based arbitration allows us to keep the costs as affordable as possible. I have a separate page on arbitration charges. The location and structure of my firm allows us to work on hourly rates which are highly competitive.
Once I have made a Determination (decision) the mediation can then resume. It may be that my Arbitration determination will conclude the mediation.
Mediator and Arbitrator
Being and active and accredited mediator means that I understand wholeheartedly what the parents and their mediator are trying to achieve in their mediation process. This means that I word my determination in a mediation sensitive way and that I will also try to make my determination in such a way that will hopefully allow the parents to continue to work together.
I appreciate that one will inevitably be disappointed by my determination. However, that they will have chosen Arbitration in support of their mediation process means that they want to work together to resolve problems in a constructive way.
You may have questions such as: Do I need a lawyer for arbitration? What is the major difference between mediation and arbitration? Or, how long does an arbitrator have to make decision? We have created an FAQ’s page that can help answer those questions.
Can I be Mediator and Arbitrator?
In short the answer is no.
Once I have taken the role of Arbitrator I would not be able to return to the role of mediator because I would have made a determination and there is a significant risk that one of my clients would no longer consider that I am neutral.
Arbitrating after I have mediated – even on the basis that the mediation would not resume – is a problem – because the client who is not successful might perhaps be more happy with the outcome and would retrospectively have preferred a new Arbitrator. There are also significant confidentiality issues about being aware of the confidential discussions that would have taken place within mediation.
I know that in theory mediation combined with arbitration where there is a single mediator who becomes the arbitrator (Med/Arb) is possible and does occur in some jurisdictions – I am of the view that it is better that the mediator and the arbitrator are different – to avoid the risk of confusion between roles and issues arising concerning professional boundaries.
I will refer my mediation clients who will benefit from arbitration and the arbitration process to an independent arbitrator. I believe that my mediation experience and background makes me an ideal choice to be arbitrator to couples who are making good use of mediation – but are simply stuck.
I offer a scheme in financial cases combining mediation/arbitration and legal advice – where I am in the role of mediator – but where I will work with other professionals to provide a clear and straightforward process aimed at resolving financial issues much quicker and cheaper than the court process.
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