Is Mediation to Arbitration the answer when parents can’t agree?

May 11, 2017

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Parents generally know best when it comes to making decisions about their children’s futures and this certainly underpins our family justice system. Children have a right to be consulted and their views considered, according to their age and stage, but thereafter generally parents will decide and usually choose the best of the available options.

The trial of separation

Those decision-making responsibilities come under particular stress if parents separate. A novel set of circumstances is created that has to be managed at a point where parents are likely to be at a low-ebb, stretching their capacities to the limit. Parents are not hard-wired to know how to manage these new challenges. However, where they access the right help and guidance, they are still likely to know what will work best for their children. This simply reflects that they know their children better than anyone else and have their best interests at heart.

Family mediation

Generations of parents have been helped to resolve the issues they face on divorce or separation by family mediation services up and down the country. Through family mediation, parents can access information about the options and explore their likely impacts on their children. The family mediator will be experienced in what the research shows works best for children and can draw on their own past experience of what has worked for families before and arrangements that are likely to promote the children’s wellbeing.

Family mediation is designed to promote the parents’ problem solving powers. It also promotes information gathering on the children’s wishes and feelings. Many family mediators now encourage children to see someone to share their perspectives with a view to that perspective being fed back into the discussions between their parents to enhance the chances of finding the better outcome.

Some family mediators, such as those at Family Law in Partnership, offer services such as Parenting After Parting workshops which focus on how children are likely to respond to the news of their parents’ separation and what arrangements may serve the children best.

Privilege

Family mediation promotes free-thinking about options by conducting discussions under the protection of “privilege”: if no agreement is reached, then whatever has been discussed in the family mediation can’t be quoted in later court proceedings. This also means that if family mediation doesn’t lead to a full agreement on all issues and the parties have to go to court, any progress made in family mediation is likely to be lost as the system encourages parents to switch into court-based thinking.

Choices

The problem until now has been that parents are faced with a difficult choice:

  • Either parents find a way of working around the unresolved points; or
  • They make use of the court service but are likely to experience bit by bit “court – based thinking”, losing the ability to work out for themselves the best arrangements).

Beyond this, they are likely to see their own future decision-making abilities compromised: by having reached for the “easy” solution of the court-imposed outcome, they are likely to find it harder to solve the further challenges arising later in their children’s lives.

Med to Arb

A new service is starting to be used, Med to Arb, and is intended to address this problem and seek to provide the best of both worlds by:

  • permitting parents to get as far as they can in family mediation;
  • putting on one side the agreed arrangements and then:
  • obtaining closure:  the externally imposed outcome for the parts that cannot be resolved, thereby restricting that 3rd party intervention to the minimum in a process designed to be cheap, easy, building on the progress made to that point in family mediation but resolutely focused on the welfare of children and acting in line with legal principles.

The process

The steps towards a Med to Arb solution are likely to be:

  1. The parties will want to take advice from their legal teams; having done so,
  2. The parties may prefer to return to family mediation to obtain the mediator’s help to:
    1. discuss finally whether there are solutions to be adopted; and if not:
    2. to consider process alternatives (including arbitration);
    3. explore what they will “save” from the discussions and what are the decisions that need to be resolved externally;
    4. with the help of the mediator, to clarify what they will present to the arbitrator as their best option for the unresolved elements;
    5. with the help of the mediator, decide how this will be done. One option is that the mediator will give this information, with the parties then each providing any additional information they think is needed.
    6. the mediator may also assist the parties to decide which arbitrator to appoint.
  3. The parties will then appoint an arbitrator – who may be a judge, barrister or solicitor qualified to resolve the issues in dispute in line with the law. Potential arbitrators can be identified at www.ifla.org.uk  and further information about the arbitration process can be found there and at www.familyarbitrator.com

At Family Law in Partnership we have market leading practices in both mediation and arbitration with an unrivalled depth and breadth of expertise in both fields. For further information about Mediation to Arbitration, please contact director James Pirrie at E: jp@flip.co.uk or T: 020 7420 5000.

Family Support Services at Family Law in Partnership

Dominic Raeside, Head of Mediation at Family Law in Partnership, came to family mediation from a background in family therapy. He works with Ruth Smallacombe who herself comes from a counselling and therapeutic background.

Dominic and Ruth offer workshops for parents where they can hear key information to help their children through the challenge of separation. These workshops are free of charge for clients of Family Law in Partnership and are offered to other separating parents throughout London and the South East at a small charge.

We have thirteen family mediators at Family Law in Partnership, eleven of whom are also experienced and specialist family lawyers. They offer sole & co-mediation, child inclusive mediation, mediation involving child abduction and civil/commercial mediation.

Our lawyers run family cases involving children through the courts every day. They bring this knowledge and these insights and share them with clients through their work in mediation.

We have three arbitrators qualified to make determinations in relation to children matters. We also have relationships with a wide range of external arbitrators and see ourselves at the heart of this important movement.

  • Parent co-ordination

Beyond this, we are working to develop a new range of services for parents to help them implement arrangements and manage detailed, day to day issues that arise.

For more information about the Family Support Services available at Family Law in Partnership, click here.