Mediation-to-Arbitration

 

We offer unparalleled expertise in both mediation and arbitration. Legal 500 UK 2020 describes FLiP’s mediation practice as pioneering and market-leading’ with Dominic Raeside, our Head of Mediation described as an ‘outstanding mediator’ and James Pirrie, our leading arbitrator, ‘a real thinker. Very balanced and fair’.

Our first class mediators and arbitrators combine exceptional legal knowledge with care and compassion to deliver constructive solutions, always in partnership with you.

What is Mediation-to-Arbitration? →

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” part of 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 ideas about solutions shared in the mediation cannot be easily exported into whatever alternative process they subsequently 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, mediation-to-arbitration allows parties who have not reached a agreement in mediation on all issues 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; 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 before them in line with the law.

How does Mediation-to-Arbitration work? →

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 relevant 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 delimit the arbitration process 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 in reaching solutions to your family law matters 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

Why Use Mediation-to-Arbitration? →

There are a multitude of reasons why people leaving the mediation process prefer the arbitration route over going to court. Some examples are as follows there is one reason (at the end) why people may prefer court to arbitration) :

  • 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 minimum 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 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: Arbitrators will charge fees. Currently though these are reasonably competitively priced.

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