Alternative methods of Dispute Resolution are going to be a key component of the future landscape of Family Law in England and Wales. Perhaps Mediation has been given the highest profile through the government's unabashed promotion of the benefits of this alternative to court proceedings. Whether Mediation can live up to the government's accolades is yet to be seen, but there is little doubt that Mediation has much to offer certain couples, (usually those that are able to communicate well and appreciate the other's point of view). Another alternative method of dispute resolution that has hit the headlines in recent months is Arbitration. This exciting new addition to the whole menu of dispute resolution alternatives available to separating couples means that there are now in place a selection of cogent and practical alternatives to court litigation, in the right case.
Turning first to Mediation, since April 2011, all parties to court proceedings in the Family arena are expected to explore the scope for resolving their dispute through Mediation by considering attending a Mediation Information and Assessment Meeting (a "MIAM"), before embarking on the court process. The planned Children and Families Bill would upgrade the "encouragement" and will require all separated parents to attend a MIAM before making a court application.
So why is the government so keen to promote Mediation? Mediation, as with many of the alternative methods of dispute resolution, offers an opportunity for parties to come to an agreement themselves. In a series of meetings with the parties, the Mediator does not advise or represent the individuals involved, but instead works in an impartial way to help them arrive at their own decisions. The Mediator, with some considerable skill and deft handling of discussions, enables the parties to move to common ground. Mediation is a forum which encourages a holistic approach to the complex issues that arise in any separation and acknowledges that no issue arises in isolation. The benefits can be considerable and, for example, it is widely acknowledged that the outcome for children is vastly improved when parents have mediated as opposed to litigated any dispute. It is also considered that Mediation is cheaper than the legal process and this perhaps is key for the government. A Mediator can provide legal or other information on an even-handed basis, to assist the parties (for example, in understanding how legal principles are applied by the court). It is frequently helpful for both clients to receive advice from their respective solicitors during the Mediation process so that they can make informed decisions. Even when Mediation doesn't work to resolve all issues, the common ground approach means that the points of dispute are frequently narrowed down so that any court proceedings focus on the outstanding points.
Arbitration bridges the gap between Mediation and court based litigation and it is a "quasi-judicial" process. The Family Law Arbitration scheme was launched in February 2012 by the Institute of Family Law Arbitrators ("IFLA"). Withers' family team was at the forefront of this ground breaking new development.
Arbitration is a good option for those individuals who are able to co-operate to some degree but cannot agree how the overall issues should be resolved. The scope of family Arbitration is limited to financial and property issues and, as well as being a good forum for the overall resolution of an application for financial relief, it can also be useful for the resolution of discrete issues, more quickly than making an application to court.
The parties elect an Arbitrator who will adjudicate their dispute. They agree to be bound by the Arbitrator's decision which in turn will be made into a court order. The process can be entirely bespoke and although the rules lay down a default procedure (which mirrors the court timetable for exchange of information), the parties are free to mould the process to their requirements and can proceed as quickly or slowly as they wish. Another key benefit is that the Arbitrator will remain with the case until it is concluded, offering continuity and a personal touch that is appropriate in the arena of family law where the issues being considered are, by their very nature, personal.
Arbitration is a real alternative to the court process and with Mediation and the Collaborative Law process means that in this personal area of law there are now a whole menu of dispute resolution alternatives available.
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