Family Arbitration can save a mediated divorce from crumbling into a nasty costly court fight, so should more mediators be focusing on it as a resource for their clients?
In the very first of a short series of short articles, how family arbitration could become a powerful new device in the mediator’s toolbox is explored, as it has done over the pond in the United States and Canada. In part two, whether it conserves the client cash and whether the arbitrator’s decision is always enforceable by law is examined, and part 3 will deal with the probability of family arbitration growing strongly in the UK, or will it go the way of collaborative law, which (up until now) is still mainly unidentified by the public as an alternative for navigating divorce?
Family Arbitration is the newcomer in the family law neighborhood in England and Wales, and the potential benefits to separating clients are tremendous. Family arbitration has triggered interest by people like New York Mediator Ken Neumann, who has explained how useful arbitrators could be in un-sticking a mediation process. “Sometimes,” he described, “the couple can not settle on one problem, and they simply really want someone else to decide for them.”.
An outstanding talk offered by UK Arbitrator Mena Ruparel is persuading some that the increase of family arbitration in the UK was a cause worth supporting. Several arbitrators were contacted through e-mail on a Friday evening resulting in a cascade of responses by the Monday morning! The interest was self evident for arbitration among a wide range of family law experts who have certified as family arbitrators, ranging from barristers, mediators and collective attorneys.
In other parts of the world, including the United States and Canada, when a mediation process founders, an arbitrator is brought in if the couple desire it, to resolve the argument for them. This is also how it can work here – but currently not enough solicitors are notifying divorcing couples properly of this alternative.
When a Mediation fails to bring contract on all aspects of the divorce, instead of ending up in court – where the whole process can untangle and start right back where you started, losing all the contracts already made – with a Divorce Arbitrator that single sticking point can be fixed. And quickly (compared with waiting months for a court date).
Some feel sadly this is not presently possible in the UK if the Collaborative Law procedure gets stuck – it is just an option for mediation, which can advance after the issue has been chosen by the arbitrator.
Even if a financial planner gives clear advice on how a pension could be split or the division of home possessions, it might be that the social events would like an adjudication from the Arbitrator who will compose their award and make a legitimately binding decision. The Arbitrator can also handle discrete aspects of a case so if there is a mediation where there is one issue that has to be dealt with, this can be described arbitration keeping the remainder of the agreement in tact.
We recommend that even with the potential benefits of arbitration, you will benefit from the advice of a specialist family law solicitor. We can make a suitable recommendation in your locality.