Mediation-to-Arbitration (or Med-to-Arb) involves using both the mediation and the arbitration processes to resolve your family law issues.

You would start the process with mediation. During the mediation stage, you cannot normally “bank” or keep the progress you have made and then progress to resolve what remains outstanding using another process (using solicitor led negotiation or litigation, for example). This may seem odd, but it is because in mediation:

• either you reach an agreement on all the issues between you; or
• everything remains up for discussion.

Couples often feel frustrated that the solutions they have reached in the mediation cannot be carried over into whatever alternative process they choose to finalise matters. This is because usually mediation is carried out on a without prejudice basis meaning that proposals remain firmly locked within its four walls by the rules of privilege.

However, the process of mediation-to-arbitration allows parties who have not reached a full agreement in mediation to continue their progress using arbitration.

The parties agree that:

• Certain matters resolved within the mediation will, once you have had the chance to take legal advice on them, be adopted as fixed points for going forward into the arbitration; and/or
• The mediator will have the duty of summarising the agreed facts and presenting them to an arbitrator.

The arbitrator acts as a private judge who has the power to impose a binding solution on the remaining issues in line with the law.

You make as much progress as you can in mediation – hopefully to reach an agreement on all the issues between you. Your agreement is then approved by your lawyers and reworked into a final set of binding arrangements.

If, however, one of you decides that mediation has gone as far as it can but some (or all) of the matters between you are left unresolved, then you can move on to arbitration.

At this point you would:

1. Appoint an arbitrator;
2. Authorise the mediator to summarise the material gathered about your situation within mediation, and you would approve those summaries;
3. Consider ‘banking’ some or all of the progress that you have made in mediation, which operates to focus the arbitration process on the remaining issues and reduce costs;
4. Authorise the mediator to summarise the agreed “fixed points” upon which the arbitration will build, and you would approve the summary;
5. Authorise the mediator to provide all of this material to the arbitrator; and
6.  If necessary you would pull together more information for the arbitrator – gathering only the other parts that are needed.

The arbitrator will then make a decision on the basis of the information supplied.

Choosing arbitration as the next step is something that you need to carefully consider. You should consult your lawyers (if you choose to appoint lawyers) and then meet the arbitrator on a no-obligation basis to assess whether you are comfortable with the process.

Family Law in Partnership’s James Pirrie is an experienced arbitrator who can explain the arbitration process and its benefits to you. Contact James on T: 020 7420 5000 or E: jp@flip.co.uk

There are many reasons why people leaving the mediation process prefer the arbitration route over going to court:

• Court: The court will deal with all the issues.

Arbitration: You can define what issues are considered.

• Court: The court has a standardised process, involving many steps, which may be costly and will certainly take time to complete.

Arbitration: You will design the process required which is likely to reduce costs significantly.

• Court: You must wait for availability in the court’s diary.

Arbitration: dates are usually available immediately.

• Court: Court progress is always by hearing which is usually time-consuming and therefore more costly.

Arbitration: can proceed by written submissions (‘papers only’) instead if this is appropriate.

• Court: Some people find attending court stressful and they may find it more combative than feels appropriate.

Arbitration: ‘Papers-only’ arbitration will usually reduce this stress.

• Court: Usually barristers will need to be appointed, which will increase the cost of the process.

Arbitration: This may be easier to manage in arbitration.

• Court: Court lists are busy – there is a risk of a last minute cancellation of your date or going part-heard (you have to come back some months later).

Arbitration: We have never heard of an arbitration being delayed/going late/ involving delays such as these.

• Court: There are court fees but the Judge’s time is free of charge.

Arbitration: However, arbitrators will charge fees. So you need to ensure that you are prepared for this.