Arbitration for financial disputes has been available for some years and, although the number of people taking it up has not been high, it has been strongly supported by Judges. For those who have the available finances, it represents a quicker and more civilised way to obtain an independent and binding judgment than the Court system.
Benefits include Privacy and Control
The proponents of arbitration emphasise the privacy that it brings (particularly for clients in whom the media may be interested); the fact that if desired, the couple can select their arbitrator and the location of the arbitration hearing; and that on the day they can be guaranteed a prompt start without the Judge being occupied with other matters. The location (usually a solicitor’s office or barrister’s chambers) is generally an improvement on court waiting rooms.
Downsides include cost and the need for all parties to agree
The major factors that discourage arbitration are the cost and also that both parties have to agree to use arbitration, whereas any one person can initiate a court application and the other is (however reluctantly) drawn in. In terms of the cost, services of the arbitrator are chargeable to the parties, on top of their own legal fees. However, the cost of many cases that go to arbitration will be comparable to the costs lost in ineffective or reduced Court hearing slots (assuming that the case can proceed at all and that the Court has not over listed).
An additional issue is that (although the courts have been keen to uphold arbitrator’s awards) there is as yet no mechanism within the arbitration process itself to compel the production of information from a recalcitrant party. The arbitration process cannot be used, therefore, if there are concerns about a lack of financial or other information.
The arbitration scheme will cover some children’s matters
As a result of the relative success of arbitration for financial matters, the process has been extended to some (not all) children issues. The scheme covers:
- the present or future welfare of the child concerned, including upbringing;
- the present or future living arrangements (including internal relocation disputes);
- all contact and educational issues; and
- matters that could be the subject of an application to the court under s8 of the Children Act 1989.
The scheme cannot deal with:
- child abduction;
- disputes relating to the authorisation of life-changing or life-threatening medical treatment;
- any case where a party lacks mental capacity;
- any case where the child concerned is (or ought to be) a party to the court proceedings.
As in the court system, English law will be applied. For arbitrators exercising their discretion in determining any question relating to the upbringing of the child, the welfare of the child will be the paramount consideration and particular regard will be given to the welfare checklist in section 1(3) of the Children Act 1989, along with the no order principle (s1(5) Children Act 1989).
However, in addition to the cost of the arbitrator, there may well be another expense in connection with children matters. The Judges and magistrates benefit hugely from the services of CAFCASS, who will interview the children and provide the courts with reports and safeguarding checks. In arbitration, the couple can jointly employ an independent social worker with appropriate expertise. This appointment has to be agreed by the arbitrator.
An anticipated advantage of the scheme being extended to children matters is the varying timetables that can be applied. Sometimes there is an urgency to the matter, say in connection with deadlines for school admission places. However, in other cases, the children and the family need to take time to adjust to different stages in the process, particularly with very young children. The arbitrator can be retained and the timetable can be agreed, and adjusted by the parties where necessary.
At Barr Ellison we want to make sure our clients have the opportunity to take the route to resolving their issues that best suits them and their family. We offer a traditional Court route alongside the collaborative law approach that keeps both parties out of the Court. The availability of arbitration for children matters is a positive development, giving clients another option which can be tailored to suit their particular requirements and hopefully bring their dispute to a prompt and satisfactory resolution.
Most people strive for a harmonious, balanced life as free as possible from the stresses and complexities that life invariably throws our way. However, when a marriage or partnership breaks down, it can become suddenly overwhelming and divorce mediation may help. It is normal to feel angry, upset and frightened for the future and it is no surprise that objectivity can take a vacation when dealing with the divorce process.
Many turn to divorce mediation to try and resolve the situation and come to terms with the loss of their relationship. Communication problems tend to be a key stumbling block in attempts to reach resolution on key issues such as children and finances. It is often the case that the most important thing in communication is hearing what isn’t being said. The art of reading between the lines is a lifelong quest of the wise. It is how the parties communicate and deal with the disagreements post separation that is often crucial to a successful outcome.
The nuts and bolts of mediation
Mediation offers a forum for the parties to have a discussion and endeavour with the help of the mediator to come to a resolution. It is important that parties are aware of some fundamental principles of mediation which are:
- Confidentiality – mediation is a confidential discussion that cannot be repeated in court or anywhere else. What this enables the parties to do is to have an open discussion about the issues that are important to them without the threat that everything said may be repeated to a Judge if their case ends up going to court. The parties can of course tell their solicitors what is said in mediation. The only time the confidentiality rule can be overridden is in the event a child may be at risk of harm or indeed if one of the parties may be at risk.
- Voluntary nature – mediation is an entirely voluntary process. There is a misconception that parties have to attend mediation. This most likely results from the requirement that if an application to the court is required, then in most cases the applicant has to attend a MIAM (Mediation Information and Assessment Meeting). The purpose of a MIAM is to assess whether mediation might be appropriate and to invite the other party to attend. If the latter chooses not to attend, then the mediator will sign the MIAM form, and the party can then proceed with their application to the court.
- Impartiality – the mediator is entirely impartial. This means that they are not rooting for one party over the other. The parties generally will have their own solicitor on the sidelines advising them. It is not the mediator’s role to advise or to be too directional, though they can provide information. The mediator’s task is to facilitate a discussion and seek to peel away at an issue to get to the core of the problem.
How does it work? Is it for me?
Divorce mediation can take many forms and needs to be tailored to what the parties’ want, as after all it is their process. Normally parties are initially seen separately and thereafter a number of joint sessions follow. The number of sessions again depends on the parties.
Mediation is not for everyone and there may be many reasons why someone might not feel comfortable in a mediation setting. They may feel that they will not be listened to, or be intimidated by the other party, unable to speak out and say what it is they want. They may think that the other party will not make full and frank disclosure of their financial details and therefore the process will be a waste of time. These are all normal concerns. The important issue to remember that mediation is about having a discussion and to try and ward off the polarisation and hostility that can quite easily take over when parties venture down the court route.
Be the architects of your own agreement
If the parties reach an agreement in mediation at the end of the process a Memorandum of Understanding is drawn up by the mediator. This is not a legally binding document. It simply sets out for the parties and their respective solicitors what has been agreed. That agreement has to then be put into a Consent Order for the Court to approve. The parties can change their minds after the mediation process if they choose.
It is commonly accepted that a solution reached by separating parties through negotiation and discussion (rather than one imposed by the court process) is more likely to leave the parties to a divorce less bruised and battered.