- AuthorClare Thornton
Family Arbitration by a Mediator – how does it work?
How can you be a Mediator and Collaborative Lawyer, with a practice so focused on keeping matters out of litigation, and yet be so excited to have qualified as a Family Arbitrator, I hear you ask? Surely these ways of working are incompatible with each other?
I remember a fellow Mediator being amazed when I told him I was training as a Family Arbitrator and certainly I began the training with the sense that I may be ‘out of my depth’. However, many fellow Arbitrators put my mind at rest and I realised that not only were there other Lawyer Mediators on the training, Suzanne Kingston (one of the trainers) is herself both a Lawyer Mediator and a Collaborative Lawyer.
It seems to me that this new, exciting, yet often scary new legal landscape we find ourselves in offers so much more for our Clients. When I look back at my work five years ago, I spent the bulk of my time arguing with other Solicitors in Court, trying my best to represent my Clients in the least confrontational way possible, but in an environment where the system was entirely alien to the concept of resolution. Yes, I settled matters, but often because the Clients had become brow beaten into submission by the sheer cost and time taken to resolve matters through the Courts.
To me, the ever increasing rise in the popularity of Mediation and its place in our society provides many Clients with the most cost-effective, future-focussed and timely way of resolving family disputes.
However, there are some folk for whom neither Mediation nor Collaboration is an option. Just because our world is changing so rapidly, does not mean Clients themselves have changed. Some people cannot, or will not, agree with each other no matter how hard we all try to get them to. Sometimes, they are not in the right place at the right time to make those decisions which need to be made. Give them a few months and let them spend thousands of pounds on lawyers and they often are at that place, but is that the best way for anyone to deal with matters in the long term? I think not.
Family Arbitration provides another tool for us to use to help Clients unable to find agreed solutions, to at least have access to a process designed entirely around their needs and circumstances. It is very much a process created by the Clients (and their Lawyers). The Arbitrator and the lawyers agree what disclosure is required to enable the matter to be arbitrated. No-one is stuck with a rigid process of Form E’s, First Appointments, Financial Dispute Resolution appointments and so on. It is very much a team process where everyone agrees at an early stage what evidence, disclosure, statements and whatever else are needed, and the timescales in which such documents and information are to be filed in advance. Put simply, there is no “one size fits all” policy in Arbitration: it is entirely bespoke and tailored individually to the need of the Clients. As a consequence, the process is inevitably quicker and likely also to be more cost-effective for Clients.
I see particular advantages in Arbitration, for instance for cases where there is a single discrete issue to be resolved. Imagine a case (whether you are acting as Mediator, using the Collaborative process, or in a more traditional Solicitor role) where you have resolved the bulk of the financial dispute, but the Clients are stuck say on the term of a prospective periodical payments order or the variation of an existing periodical payments order. Traditionally, this would necessitate a Court application involving the filing of Form E’s and the full FPR route. Instead, the parties could instruct an Arbitrator, agreeing what documentation is relevant to the dispute, and then arrange a hearing if both parties want one, or indeed agree to deal with the matter on the papers only. The Arbitrator would give a decision (called an Award) which the parties will have agreed in advance to be bound by and the lawyers would simply draft up the Consent Order. All this could be done at a speed and cost determined by the parties and the Arbitrator. Furthermore, Arbitrators may be prepared to negotiate a fixed fee in appropriate cases.
With the demise of legal aid, and the consequent inevitable onrush of LIPs/SRLs, any process which offers a bespoke, cost-effective and swift solution for couples can only be a good thing, in my view, and will moreover leave the Court freer to deal with those people who really need them,
Furthermore, I can foresee that many couples faced with the reality of a third party making decisions for them, will surely do their upmost to settle, even if it is at the doors of the Arbitration hearing. Some Clients just need that moment to give them a reality check and focus their mind on agreement.
So, to me, this is another tool in my Dispute Resolution box. The skills I and others like me have developed through Mediation and Collaboration will transfer to my Arbitration work and will help to make the process for Clients as “user friendly” as possible whilst providing them with certainty of outcome in a process suited to their individual needs.