Arbitration and mediation are, in effect, the polar opposites of each other in the dispute resolution process.
Mediation is where you and your former partner, generally without your legal representatives, meet with a trained mediator who helps facilitate the discussion between you both and aides you in coming to a satisfactory conclusion. The mediator’s skill is facilitating dialogue and preventing ‘log jammers’ in the conversation.
The mediator cannot give you legal advice but can tell you what the law is. The mediator is not directive and will comment when requested but will help you reach a settlement that is satisfactory to you both. The mediation will, of course, guide you away from potential settlements which are, ultimately, highly unsatisfactory to you or have little longevity.
At the conclusion of mediation the mediator will produce a report setting out:
- The asset schedule from which you have been working (in financial matters);
- A background and overview of your facts and situation;
- A written mediation summary setting out what you have agreed.
The results of mediation are not binding. Either of you can refuse to follow through with that agreement. To have a binding result, it requires one of you to approach a solicitor with your mediated summary so that that solicitor can reduce your agreement into a legal document that can be sealed by the court.
So whilst a mediated agreement is persuasive and parties are a lot more likely to adhere to an agreement that they had brokered themselves, it is not in any sense binding.
Mediation suits those couples who have the ability, despite their difficulties, to still talk to each other and still try and resolve matters fairly. Mediation does not suit situations where there is a significant power imbalance or any form of domestic violence or bullying. Mediation is often the first of the dispute resolution processes parties will engage upon either before they have had a solicitor’s general advice or shortly after, so they understand what their situation is at law so they can negotiate within that framework.
Conversely arbitration is an ‘end process’.
It is engaged upon when the parties have exhausted either discussions between themselves, mediation or solicitor negotiation. It is a useful alternative to the court which would otherwise be the only option open to parties who have been unable to resolve the disputes between them.
The benefit of arbitration is that it’s quick, cheap and, most importantly, you and your former partner choose the arbitrator who is going to make a determination.
Where arbitration significantly differs from mediation is that it is directive in nature. Whilst the arbitrator will listen to both parties’ positions and both parties’ arguments, the arbitrator will make an award that he or she thinks is appropriate in the case. So in essence, the arbitrator is the same as a judge making a determination at a final hearing. The parties have no say in the outcome of the case and the areas of dispute between them are ultimately determined by the arbitrator, such determination being binding on the parties.
Once the arbitrator makes an award, that award is binding.
In order to support the arbitration process the courts have indicated, in those few cases which have come before the court, that an arbitrator’s decision will, except for serious errors in law, be upheld.
It is also the case the court has created a fast-track approval of arbitration awards into consent orders of the court.
As a matter of public policy the court and government want arbitration, effectively private law, to be supported and so therefore have made it as determinative as it can be.
For more information on the issues raised in this blog please do not hesitate to contact Julian Bremner