Using mediation, collaboration or arbitration as an alternative to going to court
Mediation, collaboration and arbitration are all positive alternatives to going to court and tend to have less impact on your children. Members of our family law team are accredited collaborative lawyers as well as accredited mediators, who can guide you whichever process you choose.
A relationship breakdown is inevitably stressful, but there are ways to ease the strain and eliminate the anxiety of going to court. Family mediation and collaboration are ways to reach an agreement through discussion and negotiation.
These routes are especially worthwhile if you have children. They will be able to see that you’re still working together to find a solution, in an atmosphere that’s conciliatory rather than confrontational.
What is family mediation?
In family law mediation sessions, you and your former partner sit around a table (or occasionally in separate rooms) to discuss matters with the help of a neutral third party, the mediator.
You decide the issues for discussion in mediation, which often focus on divorce and separation, financial issues and dealing with arrangements or disputes relating to children. The mediator helps to facilitate the process and guide the discussions, but the decisions about the outcomes are yours. The mediator can give legal information, but not legal advice, they will refer you to your individual solicitor for advice, which works in tandem with the mediation process.
Mediation is a flexible and bespoke process which will move at your pace, with as many sessions as you require. It is completely voluntary, and you are free to withdraw at any time.
What is the mediation process?
Once one of you has contacted us, we will arrange individual initial appointments with each of you. We will send you an Agreement to Mediate and the Mediation Preliminary Information Form before your individual appointments.
Our Law Society-accredited family law mediators offer an initial individual meeting to explain more about the mediation process and answer any questions you may have. If family mediation services are suitable and both of you wish to proceed, we’ll then arrange joint sessions.
After signing the agreement to mediate, both of you will work with the mediator to:
- Explain your family situation
- Agree the issues you need to discuss
- Decide the priority of the issues
- Set timescales
- Clarify the issues in dispute
- Consider whether any other specialists might be able to help you
- Find the common ground
- Provide/obtain information i.e. details about any property you own, and your income and expenditure
- Look at the various options and reality test those options. When there are financial issues, you will need to consider what everyone in the family needs – especially the children
- Arrive at the option that best suits you both, and work out the details of your proposals
How long do mediation sessions last?
The initial individual meetings usually last about half an hour. They are typically followed by around four joint sessions of 1.5 – 2 hours each.
What is the mediator’s role?
The mediator will assist and guide you both towards your own resolution. The mediator does not decide the outcome, but helps you understand and focus on the important issues needed to reach a solution that might work best for you and your family. Our family mediation solicitor is trained by Resolution.
Do I need a solicitor for mediation?
You do not have to have a solicitor in order to take part in mediation sessions, but we encourage you to take some legal advice alongside the process. Our mediators can provide you both with legal information, but not advice.
What is family mediation or mediation for parents?
If you are parents applying for an order in relation to your children, the courts now require you to consider mediation. Mediation allows you to remain in control of any decisions affecting your child or children. You will need to arrange and attend a mediation information assessment meeting (referred to as a MIAM). You’ll also need to prove to the court that you’ve attended this meeting as part of your application.
Where are the mediation meetings and how much will they cost?
Mediation is available at all our offices in Guildford, Southampton, Lymington, Richmond, Woking and the City of London. All offices can offer separate rooms if time apart is needed during the sessions. Your individual meetings and the joint mediation sessions can also be conducted online if you prefer and this is suitable for what you need to discuss.
We offer a range of hourly rates and some fixed fees for your individual meetings with our mediators, with the joint sessions charged at our hourly rate per couple, i.e. if you agree to share the mediator’s costs equally you pay for time charged at half of our mediators’ hourly rates.
Arranging family mediation
What is collaborative approach?
The collaborative approach is where both of you and your respective solicitors engage together in several face-to-face meetings to help settle points between you, typically involving your children and finances.
As experienced collaborative approach solicitors, we will give you both ‘real time’ legal advice, practical help and guidance in these meetings, which are intended to be informal and constructive so you can openly explore different options in a safe and managed environment. Several members of our Family law team are accredited collaborative solicitors.
We may involve neutral experts in the meetings also such as family consultants, accountants or pension experts.
What is divorce arbitration?
If you and your partner are struggling to reach an agreed outcome, you may want to consider using arbitration as an alternative to court. As a couple, you can choose the arbitrator who acts as a ‘judge’. The benefit of arbitration over a court process is that you will always have the same ‘judge’.
You can choose the timing of the process to suit you (rather than a court schedule), and you know you’ll be heard at a given time on a set date rather than having to wait in the court precinct.
The decision of the arbitrator is final, and the couple agree to be bound by that decision. As your solicitors, we would prepare your case for arbitration and be by your side every step of the way.
What is arbitration?
Arbitration is a form of dispute resolution which takes place outside of court. The parties enter into an agreement to appoint a specialist lawyer (an arbitrator) to adjudicate a dispute. The parties agree to be bound by the decision of the arbitrator which is called an Award (finances) or a Determination (children).
Why should I arbitrate?
Arbitration has a number of advantages over court proceedings and is often chosen for its speed of process; confidentiality; flexibility; cost savings and for the ability to choose the arbitrator.
Is arbitration binding?
At the outset of arbitration, parties commit to be bound by the written decision of the arbitrator. The written decision is called an Award (finances) or a Determination (children). A court will not only endorse Awards and Determinations made under the IFLA (Institute of Family Law Arbitrators) Schemes, but it will also enforce them if required.
Who pays for the arbitrator?
Typically, the cost of the arbitrator is shared equally between the parties.
Is arbitration more expensive than court proceedings?
Whilst parties have to pay for an arbitrator, as the process of arbitration can often be undertaken and concluded far more quickly than would happen in court proceedings, it usually results in significant cost savings for the parties.
Who can be the arbitrator?
The arbitrator will be an experienced family lawyer who is accredited as an arbitrator by the Institute of Family Law Arbitrators (IFLA).
How is the arbitrator chosen?
Usually one party will propose three IFLA arbitrators for the other party to select one. If agreement cannot be reached between the parties, then the IFLA panel will select an arbitrator.
What disputes can be dealt with by arbitration?
Any financial and property disputes arising from family relationships and most children disputes, providing there are no safeguarding concerns.
Can I arbitrate if I have started court proceedings?
Yes. Judges have the power to adjourn court proceedings to give parties the opportunity to resolve the dispute through arbitration.
What is mediation?
Mediation is a voluntary process whereby a separating couple sit around a table with an independent third party, the mediator, to help them discuss the division of their finances upon their separation or divorce, and the arrangements for their children if needed. If there are no finances which are relevant to talk about then mediation can exclusively be used to deal with the arrangements for the children. It is a very flexible process and can be used to discuss whatever the couple wish to use it for. It is not, though, therapy or couple counselling.
What are the advantages and disadvantages of mediation?
Mediation is often a lot quicker and more cost effective than resolving matters in more adversarial ways, for example court proceedings. The decisions are made by the couple and therefore both have much more control and say in the outcome. The needs of any children and wider family considerations can be prioritised. The disadvantages are that it is completely voluntary so if one person wants to mediate and the other does not there is nothing that person can do to make them, and the decisions made are not binding so it is possible for one person to change their mind at any time and other options would then need to be looked at as to how things can be resolved.
Is mediation compulsory?
No, mediation is completely voluntary. What is compulsory is to attend a Mediation Information and Assessment Meeting (MIAM) before making any application to the court for the court to deal with the financial matters alongside a divorce and/or any children matters. The court needs to be satisfied that anybody making an application to the court has met with a mediator to have explained to him or her the various different options as to how things can be resolved outside of court before making a court application. It is possible to skip the MIAM requirement in the event of certain exceptional circumstances, such as the need for an urgent hearing.
How long does mediation take?
Mediation is a bespoke process so it can take as long as the couple need it to take. Typically a mediation is concluded after three to four sessions, each lasting around 1½ hours. These sessions can take place over a period of weeks or months, depending on what suits the couple. Sometimes financial information can take a while to come through, such as pension valuations, but other than that the pace is determined by the couple.
Is the decision binding?
The outcome in mediation is not binding unless and until it is drafted into an order of the court for the judge to approve. Only when any agreement is put into a court order and approved by the judge does any decision become binding. It is very common, though, for the mediated agreements to be effectively converted into consent orders for the judge to approve upon mediation concluding without any issues.
What happens if mediation fails?
If the mediation breaks down for any reason then the couple will need to speak to their legal advisors about their other options, such as making an application to the court. The door is always open so the couple can return to mediation at a later stage if they both wish to do so. The only exception would be if the mediator has deemed mediation unsuitable.
How much does mediation cost?
Mediation fees vary depending on what needs to be discussed and how many sessions are needed. A typical mediation can be concluded much more cheaply than going to court or engaging in lengthy adversarial solicitor negotiations. Further information on costs is provided by our mediator once the couple have both met with her individually.
Can I bring someone to the mediation?
It is possible to bring a friend or family member to your individual initial appointments with the mediator when mediation is discussed with you and you decide, together with the mediator, whether mediation is suitable and something that you want to engage with. Thereafter, in the joint sessions, it is not possible to bring anybody else unless both partners agree and the mediator is also happy with this. Sometimes extra professional support is needed in the mediation process, such as a financial consultant to help assist with discussions about pensions and tax, and a family consultant to help assist manage the emotions and communication issues.