Can Arbitration ‘rescue’ a mediation going off the rails?
Rather than throwing your hands up in despair when a series of mediations look ready to collapse, and rail against the inability of the couple to decide on one specific area that they just ‘got stuck on’ – then why not give that couple the opportunity to let an Arbitrator decide for them?
Not only do they stay out of court, but they also could continue the mediation process after that sticky patch was dealt with. Doesn’t that not seem a sensible option?
But how many mediating couples today who hit that ‘sticky patch’ are offered clear guidance on how artbitrtion could get them out of that fix (and mentioning Arbitration at a MIAMS isn’t really enough, is it?)
And how many mediators in the UK are fully aware of this extra tool in the mediator’s tool box that lies waiting for referrals for just such occasions?
Family Arbitrator Nadia Beckett – who is also a mediator herself – explains how the two can complement each other so well from the client’s perspective:
Arbitration and Mediation do not work hand-in-hand. However, arbitration is an excellent solution if the mediation breaks down or there is an issue or a number of issues which still need to be resolved.
You would not expect an arbitrator to be involved in the mediation unless there are issues which cannot be resolved in mediation. Many solicitors and mediators are reluctant to refer their clients to arbitration because they are frightened of losing the clients in the process.
As a family law arbitrator, I understand the importance of clients being represented during the arbitration. Arbitration is an excellent alternative to Court, particularly for unrepresented parties.
However, it is always preferable for parties to be represented and in receipt of proper legal advice, whether they are using mediation or arbitration.
I believe that arbitration could work very well with Collaborative Law but, again, arbitration is quasi judicial which means that it would only be used if the collaborative process breaks down or is unable to resolve all issues, unless the rules for Collaborative Law are changed to allow arbitration to be used in the same way as mediators can.
There is a greater issue even than the lack of awareness of mediators about how an Arbitrator can be an affordable and quick way for a mediating couple to resolve an issue and move forwards with the mediation. And an even greater problem than those mediators that fear they will ‘lose’ their clients by referring them to an Arbitrator where appropriate.
Some mediators and even arbitrators sabotage the client’s relationships with their solicitors
Unfortunately, there are a number of mediators and possibly arbitrators who do not understand how important it is that clients receive independent legal advice from solicitors, and who effectively sabotage the relationship between the clients and their solicitors.
They do not encourage the clients to consult their solicitors throughout the process and it is the solicitors who are left to essentially to pick up the pieces when a poorly mediated agreement is presented to them after months and several thousand pounds of costs may have been incurred in a drawn-out mediation.
I am a huge fan of mediation – and am an experienced mediator myself – but it does not replace proper legal advice and although many mediators pay lip service to this, they do not put it into practice by encouraging the parties to take legal advice during the mediation.
Some arbitrators equally need to consider the need for clients to maintain a good relationship with their solicitor who may be overseeing the whole divorce process.
At the very least, I always encourage people in my role as the Alternative Divorce Guide to have an initial conversation with a family law solicitor – ideally one trained in or highly supportive of dispute resolution practices – and to have them on hand if needed. Most definitely, to receive independent legal advice at the end of the process and to get a solicitor to draw up the financial order that has been agreed during mediation, if they use a non-solicitor mediator. Choosing the right person for the right job and knowing how to access them when needed is a practical way for divorcing couples to remain adequately resourced but also to keep the costs down.
I hope that more mediators become increasingly enlightened about how arbitration can be a way to keep a mediation on track when used appropriately, and realise that collaboration is a valuable skill to develop in their professional practice.