Published on February 15, 2024

The process of separating and resolving finances and/or arrangements for children can be difficult, but family mediation and arbitration are different methods of dispute resolution that can help parties to reach solutions outside of court. So what are the difference between Arbitration and Mediation?

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Mediation

Family mediation is a process in which a neutral third person helps a separating couple to reach their own agreed decisions about issues arising from their separation, from arrangements for their children to achieving a financial settlement. It can be used by any separating or separated couple whether married, unmarried or in a civil partnership.

Mediation is a bespoke process controlled by the participants themselves. They decide what issues they want to mediate, for how long they want to mediate and how often they want to meet. Each mediation session lasts around an hour and most mediations involve around 6-8 sessions.

The mediator acts in a neutral and even-handed way to assist the parties’ discussions. Both parties must attend voluntarily and should feel able to discuss their respective positions so that they can be assisted by the mediator to come to an agreement that works for them both and any children of the family.

The mediator is there to assist and provide information, but not to provide advice. However, participants can obtain independent legal advice at any stage of the mediation process. 

Mediation discussions are private and confidential, save in circumstances where there are allegations of harm, in particular to a child.  Once mediation begins, any information provided by the parties will be shared in the mediation, and financial information is provided on an open basis. Conversations, proposals and options are discussed on a without prejudice basis.

If agreement is reached, it is recorded by the mediator in a Memorandum of Understanding. Agreements made in mediation are not legally binding.  Legal advice should be sought on any Memorandum of Understanding and a solicitor can advise on how, if appropriate, to have the agreement incorporated into a binding court order.

Mediation can be entered into at any time; before a couple has separated, immediately after separating, during negotiations, or alongside court proceedings at any stage of litigation. Before issuing a court application about children or for a financial order, applicants will normally first be required to attend a Mediation Information and Assessment Meeting (MIAM).

Mediations usually take place with the parties in the same room as the mediator, but mediations can also be undertaken remotely. Shuttle mediation can be used to facilitate mediation without the participants being present in the same room at a mediation meeting. Hybrid mediation (also known as lawyer assisted mediation) can be used where participants and their lawyers meet with a hybrid qualified mediator.

Family mediators may not agree to mediate if they have concerns about a person’s safety.  They will not allow the mediation to continue if they feel a party is being unduly pressurised or if it is being used by one person as a tactic to delay a resolution through the courts.

Some mediators are lawyers, and some have therapeutic backgrounds such as family therapists. Most mediators operate either co-mediation or sole mediation models. In co-mediation, a mediator co-mediates with another mediator. The two mediators work in a collaborative way, bringing their different skills to the process. For example, a mediator could co-mediate with a mediator who has a therapeutic background, or where there are financial matters to resolve, a mediator could co-mediate with a mediator who is a financial adviser or an accountant. In sole mediation, the mediator works on their own with the participants.

Mediation is a voluntary process and either party can withdraw at any time if they no longer wish to participate.

More information about family mediation can be found on the Family Mediation Council website.

Arbitration

In family arbitration, a third-party arbitrator resolves the dispute rather than a judge in court.

Arbitration is a voluntary process that can be used to resolve financial disputes and disputes concerning children. It can be used by any separating or separated couple whether married, unmarried or in a civil partnership.

Arbitration can be entered into at any time; before a couple has separated, immediately after separating, during negotiations, or at any stage of court proceedings.

The parties enter into an agreement under which they appoint an arbitrator to adjudicate the dispute and make a determination. The arbitrator, who could be an experienced barrister or solicitor with the appropriate qualification, sits in the place of a judge and hears both parties’ cases and reads the evidence. The arbitrator will then determine the outcome of the dispute based on the evidence and relevant law.

The parties choose the arbitrator and the process can be arranged at the parties’ convenience and much quicker than going through the court. The parties can engage lawyers to prepare for and represent them in arbitration.

Arbitration is a bespoke process controlled by the participants themselves. They decide what issues they want to arbitrate, and the parties can tailor the process to their own needs, and decide whether the process is document only, conducted via a remote platform, telephone, or by face-to-face meetings. The issues may be determined all at once or sequentially at specified intervals of time to permit negotiation and settlement of other issues in the interim.

Parties can, by agreement, appoint appropriate experts to assist in the determination of the dispute.

The parties agree in the arbitration agreement that the decision will be binding upon them. The decision of the arbitrator is, therefore, binding and can be enforced like a court order. In financial cases the decision is called an ‘award’ and in children cases it is called a ‘determination’. The award or determination can be converted by the parties into a court order.

The parties have the right to appeal to court on a point of law (unless the parties have agreed to exclude this right). The parties can also invite the court to set aside the award if there has been a serious irregularity which has resulted or may result in substantial injustice.

Arbitration is a confidential process which means the decision is confidential, and disclosure is permitted only in prescribed circumstances. The media are not admitted to any meetings.

Mediation and arbitration can work well together. For example, if parties are able to reach agreement on some matters in mediation but not others, they can use arbitration to determine the outstanding issues more swiftly (and often more cheaply) than going through the court.

More information about family arbitration can be found in the guide to the family law arbitration scheme produced by the Institute of Family Law Arbitrators – Microsoft Word – Arbitrators.docx (ifla.org.uk)

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The Early Days Of Separation

Humans are designed to cope with many onslaughts, but change continues to prove extremely challenging. How you manage the early days of separation or divorce has the potential to set the tone for the rest of the process.

When couples separate, they are often thrown into a period of uncertainty. Identities are changing from couple to single, from mum and dad together as a family unit to mum with children and dad with children. Depending on the circumstances and who decides to leave the family home, there are many questions that arise during the early days of separation. “Will we have to sell our home?” “I haven’t worked since we had children – how will we manage financially?” “What will our friends and family think?” “How much will divorce cost?”
“Will I cope on my own?” There seems to be so much to sort out both practically and emotionally and it comes at a time when at least one of you will be ‘all over the place’ emotionally due to the loss you are experiencing. This can make decision-making seem impossible. Who wants to agree the practicalities of legal issues and more importantly organise the children when they are devastated, angry and confused by loss? It can turn otherwise rational, clear-thinking mums and dads into what appears to be belligerent, stubborn, unreasonable people.

Take Your Time!

In those early days of separation or divorce, take your time if you can. Seek support from friends, family and professionals. Try not to make any big decisions too quickly.
Bear in mind that communication problems with your ex and all the pressures on family life you are now experiencing, like for many separating couples, will get better with time. It’s important to recognise that you and your ex will more than likely be in very different emotional places at the moment; different stress levels and anxieties will be making communication difficult. Taking the time to sometimes do nothing, to not react, give things a day or two, can prove very useful techniques.
What you have to remember is that if you have children, your ex is always going to be part of your life. That can be hard to take on board when you are feeling hurt and angry. If you can find a way to communicate with each other that focuses on the children, you will all benefit in the years to come.

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