Mediation and arbitration are two forms of alternative dispute resolution that are commonly used in family law cases in England. Both methods aim to provide an alternative to litigation, which can be costly, time-consuming, and emotionally draining for all parties involved. While they share some similarities, they are distinct processes that serve different purposes. In some cases, they can however be used together to resolve family law disputes effectively and efficiently.
Mediation is a process where a neutral third party, known as a mediator, facilitates negotiations between parties in reaching a mutually acceptable agreement. The mediator does not have the power to impose a decision on the parties, but rather helps them to identify the issues in dispute and to explore potential solutions.
Mediation can be especially beneficial for separating couples who wish to maintain a workable relationship after their separation/ divorce is finalised and can therefore be particularly useful in resolving issues surrounding children.
In England, exploring mediation as an option is often a necessary preliminary step in the process when it comes to sorting out financial arrangements. If mediation is not suitable or the parties are unable to reach an agreement through mediation, they can then proceed to court.
Arbitration, on the other hand, is a process in which the parties agree to have their dispute resolved by an arbitrator. Unlike mediation, the arbitrator imposes a binding decision on the parties. The arbitrator is chosen by the parties and is usually an experienced family law practitioner or retired judge. The arbitrator’s decision is final and can only be challenged on very limited grounds. Arbitration can be a useful alternative to court proceedings in family law cases, particularly where the parties require a quicker resolution than would be possible through the court system. This approach can provide a more streamlined and efficient process for resolving disputes.
While mediation and arbitration are distinct processes, they can be used together in family law cases in a number of ways. For example, the parties may attend mediation first in an attempt to reach a voluntary agreement. If mediation is unsuccessful, the parties then move to arbitration, where the arbitrator makes a legally binding decision. Alternatively, the parties may agree to use arbitration as a means of resolving a specific issue that was not addressed in mediation.
‘Med-arb’, as it has come to be known, can be particularly useful in cases where the parties wish to maintain control over the outcome of their dispute while still having a legally binding decision if they are unable to do so. It can also be a more efficient process than litigation, as it combines the benefits of mediation and arbitration.
It is worth noting that the use of mediation and arbitration in family law cases is not yet mandatory, but they are encouraged by the courts. The courts often require parties to consider mediation before proceeding to a trial, and the courts can also refer parties to arbitration if they believe it is appropriate.
It is important to note that while mediation and arbitration can be effective alternatives to court proceedings, they may not be suitable for every family law case. The specific circumstances of each case always need to be considered and an informed decision then made as to the most appropriate method of dispute resolution.
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