Arbitration and mediation are important forms of Non-Court Dispute Resolution (NCDR), providing families with effective alternatives to resolving disputes through the court process. Both can offer greater flexibility, privacy and control, and can enable disputes to be resolved more efficiently and proportionately. However, arbitration and mediation are fundamentally different processes, and the appropriate approach will depend upon the nature of the dispute, the circumstances of the family and the outcome sought.
Mediation is a consensual process in which an independent mediator assists the parties to identify the issues in dispute, explore possible solutions and, where possible, reach an agreement. The mediator does not make decisions for the parties. Instead, they facilitate constructive discussions and help the parties to understand and consider each other’s positions. The ultimate decision remains with the parties themselves.
Arbitration, by contrast, involves an independent arbitrator who is appointed to determine the dispute. The arbitrator considers the evidence and submissions of the parties and makes a decision, known as an award. Arbitration can therefore provide certainty where parties have been unable to reach agreement through negotiation or mediation. The process can be tailored to the circumstances of the case and can provide a more flexible and private alternative to a court determination.
In appropriate cases, mediation and arbitration can also be used together. Parties may attempt to reach an agreement through mediation and, where agreement cannot be achieved, proceed to arbitration so that the remaining issues can be determined.
Both mediation and arbitration can be highly effective in financial remedy cases following divorce or dissolution.
Mediation can assist parties in negotiating an agreed financial settlement, including issues relating to the division of assets, property, pensions, businesses, trusts, inherited wealth and future financial needs. The mediator can help the parties identify areas of agreement, understand the issues that remain unresolved and explore options for settlement. Where an agreement is reached, the parties can then take appropriate legal advice and steps to formalise the settlement.
Financial arbitration provides an alternative where the parties require a binding determination of the issues in dispute. An experienced family arbitrator can determine complex financial matters and provide a decision without the need to wait for a court hearing. The process can be arranged around the availability of the parties and their representatives and can be particularly valuable in cases involving substantial or complex assets.
Mediation is particularly valuable in disputes concerning children, where preserving a constructive relationship between parents can be important for the future. An experienced mediator can help parents address issues such as where children should live, arrangements for spending time with each parent, relocation, holiday arrangements, education and other specific issues concerning their upbringing.
The focus of mediation is on helping parents reach arrangements that work for their family and, above all, promote the welfare of their children. The process gives parents the opportunity to develop solutions that may be more flexible and bespoke than an order imposed following a contested hearing.
Arbitration can also provide an effective means of resolving certain disputes concerning children. An arbitrator can determine appropriate issues within the scope of the arbitration process, providing an independent decision where parents have been unable to reach agreement. This can be particularly helpful where there is a clearly defined dispute which requires determination and where the parties wish to avoid the delay and formality of court proceedings.
Our experienced family barristers are able to act as both mediators and arbitrators in financial remedy and children cases, as well as representing clients participating in these processes. They bring extensive experience of complex family disputes, together with the legal knowledge, judgement and interpersonal skills required to assist parties in reaching or achieving resolution.
Whether the appropriate process is mediation, arbitration or a combination of NCDR methods, our team can provide clear advice about the options available and help clients and professional advisers identify the most effective route towards resolution.
Our professional and confidential chambers provide an excellent setting for mediation and arbitration. Our comfortable conference facilities and private consultation rooms allow parties, their representatives and the mediator or arbitrator to work in an appropriate and supportive environment.
Our aim is to provide a high-quality, flexible and client-focused service, enabling family disputes to be resolved as efficiently and constructively as possible, while reducing the need for contested court proceedings.
