Using mediation, collaborative law or arbitration as an alternative to going to court
Mediation and collaborative law approach are positive alternative methods to resolving issues about your finances and the arrangements for your children, avoiding contested court proceedings. These processes are less costly in time and fees and lead to a more positive outcome for your family as a whole.
Members of our family law team are trained collaborative lawyers as well as accredited mediators, who can guide you through the process you choose.
A relationship breakdown is sadly inevitably stressful, but there are ways to ease the strain and eliminate the anxiety of going to court. Family mediation and the collaborative law model are ways to reach an agreement through postive discussion and negotiation.
These routes are especially important if you have children. Your children will benefit from seeing you working together as their parents to find a solution, in an atmosphere that’s constructive and conciliatory rather than confrontational.
If matters do hit an impasse then you can still avoid court proceedings by opting for the more bespoke and quicker process of arbitration whereby you jointly fund a private judge to assist you to decide any issues that may still remain unresolved.
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More about family mediation, the process and how we can help:
What is family mediation?
In family mediation, you and your former partner discuss matters with the help of a neutral third party, the mediator to work towards resolving your issues. That can take place face to face, via remote platforms or by way of what we call “shuttle mediation” with you each in separate rooms with mediator travelling between you. We also offer mediation where your legal representatives can attend to support you.
You decide the issues for discussion in mediation, which often focus on how to separate, managing the finances upon separation and dealing with arrangements or disputes relating to children. The mediator helps facilitate the process and guide your discussions, but the decisions about the outcomes are yours. The mediator can give legal information, but not legal advice where required they will refer you to your respective solicitors for advice, which can work 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 both require. It is voluntary, and you can withdraw at any time if you feel it is not working for you.
For more information on family mediation costs and to arrange your initial individual meeting, please contact Victoria Walker.
What is the mediation process?
We will invite you and your partner to initial individual assessment appointments to review suitability and gather some initial information.
The initial meetings are an opportunity for us to explain more about the mediation process as well as other methods of non-court dispute resolution 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 on your priorities
- Set timescales
- Consider whether any other specialists might be able to help you
- Provide/ and explore your respective financial information i.e. details about any property you own, and your income and expenditure
- Look at the various options and reality test those options as to whether they are right for you and the family as a whole – especially the children
- Arrive at the solution that best suits you both, and work out the details of your settlement
How long do mediation sessions last?
The initial individual meetings usually last up to an hour. They are typically followed by around four to six joint sessions of 1.5 – 2 hours each.
What is the mediator’s role?
The mediator will assist 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 solicitors are trained by Resolution and FMA.
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.
Can mediation help parents?
If you are parents facing issues about the arrangements for your children, the courts now require you to consider mediation. Mediation allows you to be part of any decisions affecting your child or children rather than relying on a judge in court to make decisions on their behalf.
Before making an application to court you will need to arrange and attend a Mediation Information Assessment Meeting (referred to as a MIAM). You’ll 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 or remotely. 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.
We offer a range of fee options for mediation, which we will discuss with you and many couples agree to share those costs.
What is collaborative approach?
The collaborative approach is where both of you and your respective solicitors engage in four-way meetings to work together to resolve points between you, typically involving your children and finances.
As experienced collaborative solicitors, we will give you 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 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’ at each stage of the process and it can be much quicker than the traditional court process.
You can choose the timing of the process to suit you (rather than a court schedule), and you know your matter will be dealt with by the arbitrator at a given time on a set date.
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.