Arbitration is more effective than mediation where parties have tried mediation but been unable to resolve the issues between them, either in whole or in part. One of the key flexible areas of arbitration is that you are able, in your initial conversation with the arbitrator, to highlight for that arbitrator which points of your dispute need solving and which parts you have been able to resolve for yourself.
Mediation is a collaborative process of give and take. Parties must be able to negotiate their way around an issue. If it is the case that the parties’ positions become entrenched or they are not able to convince the other party of the correctness of their own position and are unable to come to a resolution, then arbitration is the obvious answer to deal with that particular problem. By its nature, mediation means that an agreement must be reached consensually. Neither party may be happy with that agreement but nonetheless it takes willingness on both parties’ part in order to compromise and reach a solution.
When that solution can’t be obtained it needs to be passed to a third party who can listen to both sides and their respective arguments and then make a determination that the arbitrator believes is the correct answer and is in line with current family law.
Arbitration can be used within a mediation process. For example, if the parties have come to a ‘log jam’ in relation to one particular issue and it’s the case that until that particular issue is solved they are unable to mediate or agree the rest of their situation, then arbitration can be used to deal with that particular issue. An easy example would be if the parties are unable to determine where a child or children live and this means they can then not deal with some of the outstanding questions in relation to the family finances. Arbitration can be engaged upon to make a determination as to where the children live quickly, cheaply and effectively enabling the parties to return to mediation to try and negotiate and deal with the other issues arising out of their separation.
Because arbitration can be specifically tailored to the parties’ needs (as opposed to the rigid strictures of the court process), it is not necessarily the case that arbitrating a decision within mediation will put the parties in a position where they are unable to continue speaking. Both parties must agree to go to arbitration and both parties are bound by that arbitration so therefore they are selecting the best method to solve an issue so that they can return to their discussions if they are unable to reach agreement as to that point themselves.
For more information on the issues raised in this blog please do not hesitate to contact Julian Bremner
