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Arbitration for Children Issues: Arbitration vs Mediation

When parties separate often issues arise surrounding the care of the children, such as where the children shall live, how often they should see the non-resident parent, what school the children should attend etc.  In such circumstances, Court proceedings are not always the most appropriate forum to deal with such disputes.  This blog looks at mediation and arbitration and sets out the circumstances in which these options will be appropriate.

What is mediation and when is it suitable?

Mediation provides parents with the opportunity to resolve issues in dispute, in a non-confrontational environment.  The mediator’s role is to facilitate negotiations and discussions between the parents.  The mediator is to remain impartial and cannot advise the parents what to do, although can give some guidance on the legal principles.

Mediation is suitable in cases where both parents want to resolve matters without recourse to the Court and only works when both parents are willing to compromise and openly discuss the issues between them.

The benefit of the mediation process is that the parents can come to an agreement which works for them, rather than having a decision imposed on them by the Court.  Moreover, mediation is a more cost effective way of resolving matters.

Unfortunately agreements reached in mediation are not legally binding, which means that either party can renege on the agreement at a later date.  A way around this issue, is to instruct a solicitor to draft a consent order reflecting the agreement reached in mediation and arrange for the consent order to be filed at Court to be approved by a Judge.

 In what circumstances is arbitration suitable?

Arbitration is a good alternative to Court proceedings and can be used in cases where the parents have reached a stalemate in discussions and need third party intervention.  Arbitration cannot be used in the following circumstances:

  • Cases involving an international element, such as applications for the temporary or permanent removal of the child from the jurisdiction of England and Wales;
  • Disputes regarding life changing or life threatening medical treatment;
  • Where one or more of the parents is under 18 years old;
  • Where one parent lacks the capacity under the Mental Health Act 2005; or
  • Cases where the child in dispute should be separately represented.

Arbitration takes place in a similar way to Court proceedings and in the same way that a Judge imposes a decision on the parties, the arbitrator makes a final decision.  The benefit of arbitration is that the parents can choose who the arbitrator should be, which ensures that a family law expert is assigned to the case, rather than unqualified lay magistrates or a non-family Judge.  Moreover, the arbitration process can happen relatively quickly and at the convenience of all parties involved.   This avoids the significant delays which are an unfortunate reality of the Court system.

The obvious downside of arbitration is the expense.  The parents are responsible for the costs of the arbitrator and venue; however many argue that this expense is far outweighed by the speed with which matters can be concluded, which in itself keeps costs down.  The efficient arbitration process generally eliminates the need for protracted solicitor correspondence, regarding issues which arise between the parents before the wider issues are determined.

So which option is best for you?

Mediation is a cost effective way of trying to agree matters with your ex-partner when you both are able to communicate, but need the guidance of a third party to keep you focused on the issues at hand.  Arbitration, however, should be considered when all other voluntary avenues have been exhausted and you and your partner require a decision to be made for you.

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