Most family mediators have experienced the problem of getting 90% there in a family mediation only to see the great work that has been achieved disappearing in a puff of smoke as the parties fall out over what appears to be a relatively minor issue. Is there a way in which the parties could save that work and simply have a decision on the last stuck issue?
As practitioners an arbitrator is unlikely to be our first port of call. We will probably have thought about parachuting in our friendly barrister to give a view on the range of likely outcomes. Or the parties may be encouraged to try to bridge the gap through their solicitors. But what happens if that has failed or is not appropriate?
We certainly won’t be parading the arbitrator as the option from the start of the process for fear of undermining the parties efforts in achieving self-determined solutions. And whether or not in years to come, England and Wales comes to embrace “Med – Arb” (mediators swapping their facilitative hat in favour of their adjudicator helmets) this is not currently an available option.
But what of the “med to arb” option:
- where the mediator hands on to a separate arbitrator;
- who offers continuity;
- building on the work already completed in family mediation; and
- creates a comprehensive structure?
As professionals working in the shadow of the legal process family mediators might assume that the process that replaces the 3-15 months of work in court and delivers an output with the same practical effect as a legal judgment must somehow be a process of great sophistication. The clients’ view may be far simpler: “We tried our hardest and we are just stuck. We just need someone to decide. Are you really telling me that the best that you have to offer is the option of tearing up all of this work which we have achieved in mediation and for us to start with a blank page in the court as if all this hard-won progress had never been achieved?”
The fundamentals in an arbitration are:
- The parties’ right to identify the scope of the arbitration;
- That once the arbitration agreement is signed, the arbitrator is seized of the case and duty-bound (with limited exceptions) to provide a determination applying English law;
- That neither party contacts the arbitrator unilaterally;
- That the arbitrator provides a fair process giving each party the opportunity to put their case and to hear and respond to the case of the other party.
Once the arbitration has started the parties, the arbitrator and any professionals involved will focus on identifying:
- The issues to be resolved
- The evidence that must be gathered for a proper determination to be achieved in line with English law; and
- Otherwise how the process can be brought to a proper end.
Let us think about how that might be done where the parties, Sarah and John, are 98% “there” as regards the arrangements for their daughter, Anna. The outstanding issue is that Sarah is clear that Anna should have Sarah’s surname as an additional middle name after the divorce whilst John says Anna’s name should stay the same and John wants an additional midweek overnight.
Using the Med to Arb procedure:
Mike the mediator has taken things as far as possible. Sarah and John have been referred for legal advice and are fully aware of the risks of impasse. Rather than abandon the agreements so far reached in favour of the court option, what might Mike offer in the last mediation session?
Summarising the mediation
Mike is bound by the parameters of mediation privilege:
- He offers to prepare a written analysis of the open information that has been shared with him as regards the situation;
- He also offers as an alternative a written summary of:
- The open information;
- The range of (currently privileged) ‘agreements’ that have been reached in mediation;
- The relatively distinct and narrow points that remain unresolved. He is careful to avoid setting out the arguments on these points. Mike is clear that Sarah and John should have their lawyers set these out or at least should have the opportunity to put their case in legal terms.
Sarah and John are clear that they only want these issues considered by the arbitrator – each are keen to put the dispute behind them. Mike will send them the written summary for them to discuss with their lawyers within a week of the session.
Identifying the arbitrator
During the last mediation session, Mike shows Sarah and John the available arbitrators on the Institute of Family Law Arbitrators website www.ifla.org.uk and Sarah and John agree to use a senior solicitor, Ann, who qualified in the first round of children arbitration which went live in July 2016. Were they not able to do so, they would submit their short-list of possible arbitrators to the IFLA by email to email@example.com and the IFLA would select an arbitrator for them.
Surveying the options
Fortunately Ann is available by phone during the last mediation session and Mike, Sarah and Jonathan have a preliminary discussion and are able to identify:
- That the issue is within Ann’s scope as an arbitrator. (Currently everything is within scope unless it contains a significant international element, relates to serious medical treatment or involves a party who is incapacitated);
- That Ann is willing to take on the case; and in broad terms:
- How this would be done, venue, timescale and what is likely in terms of fees.
- They also discuss what next steps are needed.
Preparing the application
After the session and as agreed:
- Mike prepares his written summary;
- Mike downloads and completes a draft of the application form ARB1CS from http://www.familyarbitrator.com/apply/application-form-arb1cs
- And provides basic information about arbitration to Sarah and John – http://www.familyarbitrator.com/arbitration/key-considerations-parties-practitioners He wants to make sure that if Sarah and John chose arbitration, that they are fully aware of the implications of doing so.
Further legal advice
These three documents are considered by Sarah and John and they take legal advice. They return the application form to Ann, who:
- provides them with her requirements as to ID and terms of business; and
- introduces them to her suggested Independent Social Worker who carries out the required safeguarding checks.
The arbitrator’s first meeting
Sarah and John might have a first meeting with Ann by phone or in person with or without their lawyers. In this case there is a 3-way meeting, when the following process is identified:
- As Sarah and John are not sure about whether to involve their lawyers further, Ann will provide a pre-prepared brief summary of the law that she will be applying in the decision making process (whilst also recommending that advice and guidance is taken);
- Within the following 10 days, each of Sarah and John will send to Ann a statement (with a statement of truth), operating as their evidence in chief. Ann will then share back the statements (so as, in effect, to provide simultaneous exchange).
- Within the following week, the parties will provide a summary (no more of 4 pages) of the main issues and how each of them suggest that Ann should approach the law and the issues in the case, which again, Ann would circulate.
- A date is fixed for the hearing, which is carefully timetabled to take no more than half a day and is limited to:
- Summing up
- Ann confirms she will provide her determination within 7 days following the hearing, provided that her fees had been paid by that time.
- Ann is careful to identify what representation (if any) either of them will be having at the hearing so that neither of them feel ambushed.
- Ann is also careful to consider what steps are required for hearing Anna’s voice on these issues. She is not permitted to meet Anna but the parties will involve the ISW where needed to reflect Anna’s wishes and for information as regards her age and maturity.
“Papers only” arbitration
It would have been possible for Ann to deal with these matters on paper without having met Sarah and John. However, Ann’s sense of the discussions at the first meeting is that Sarah, John and Anna would be better giving oral evidence, having opportunity to answer in person the points made; this is the recommendation that she makes and the approach that Sarah and John adopt.
Court order conversion?
The norm in financial mediations is to convert the arbitration “award” into a court order. There is not the same imperative for many parenting issues and on this occasion Sarah and John decided that no such step is needed.
A similar process might be undertaken in financial mediations, where the issue in dispute might relate to the duration of maintenance or issues of support for the children through university.
Expanding the scope of our family mediation offering
By adopting the med to arb approach, we are likely to be able to reach further in our family mediations and make it a successful and cost effective process over a wider range of circumstance.
If you would like to know more about the Med to Arb process, please contact James Pirrie of Family Law in Partnership
T: 020 7420 5000
James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost effective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. James is a qualified mediator and arbitrator (both children and financial issues).