Mediation and Arbitration

Mediation and arbitration are separate processes, but they can be used together to great effect in family law cases.

Overview

What is family mediation and arbitration?

The key is choosing the right approach for the circumstances: sometimes arbitration is used to resolve a specific issue that has arisen during mediation; in other cases, arbitration is agreed at the outset but paused (known as an adjournment) to give the parties the opportunity to mediate.

Put simply, in the first model arbitration supports an existing mediation, whereas in the second model arbitration provides the overall framework from the outset.

Model One

A specific issue referred from mediation

Arbitration can be particularly effective where parties are already engaged in mediation but reach an impasse on a specific issue that prevents them from progressing towards an overall agreement. For example, arbitration may help resolve a single issue such as the treatment of an inheritance received by one of the parties during the relationship. In this scenario, I am appointed as arbitrator for that specific issue, make the binding decision needed, and then step back out of the process. Having resolved the issue, the parties can continue the mediation process with a clearer focus, enabling them to move forward towards a negotiated outcome.

Model Two

Adjourning arbitration to allow mediation

A different model is for the parties to appoint an arbitrator at the outset, but the arbitration is then adjourned to give them the opportunity to mediate. This can be particularly valuable in more complex family disputes, where the parties wish to preserve every opportunity to reach agreement. At the same time, they want the assurance at the outset that, if mediation does not resolve every issue, any outstanding matters are automatically returned to arbitration. Those matters can then be determined decisively and in a timely manner.

Both models can appeal to couples who value mediation because they preserve many of the qualities that make mediation attractive in the first place: privacy, flexibility, transparency and the opportunity for each party to be properly heard. At the same time, the models provide the certainty that mediation alone cannot always deliver.

Whether arbitration is used to decide a specific issue within an ongoing mediation, or whether arbitration is adjourned to allow mediation to take place first, the parties can avoid the need for court proceedings, agree between themselves the issues to be determined and choose the decision maker. The parties benefit from a process that is focused, confidential and capable of delivering a binding outcome. In either case, arbitration can provide a more constructive and cost effective route to resolution than court proceedings. Information about fees can be found here.

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