It is important to note the difference between arbitration and mediation when attempting to resolve family disputes. Both aim to appoint a neutral third party to oversee the process of family negotiation outside of court, but they differ in nature and in that while they can both be binding, it is possible and common to employ mediation as a non-binding process. Either of these methods can be suitable for couples or families facing relationship breakdowns, divorce, or custodial battles.
Mediation works for clients who want to appoint an impartial mediator to facilitate calm and fair discussion with the goal to resolve the dispute without the trial process. The reason many families choose mediation before pursuing court trial is because it is a cost effective process, and most courts require mediation attendance in cases regarding assets, property, custody, etc.
Although the mediator can’t give legal advice, they are there to listen, create a calm atmosphere, and suggest practical ways to reach common ground. If children are involved, their well being will be prioritised by the mediator and they may be invited to attend sessions if appropriate. Prior to attending mediation, you may need to complete a financial disclosure form if you’re attempting to resolve financial or property issues.
It is not always mandatory to attend mediation sessions if, for example, domestic abuse is a factor at play. However, if you want to attend mediation and your partner does not, it still stands up in court if you attend a mediation assessment alone. If you are on a low income, you may be entitled to legal aid to help pay for the MIAM (mediation information and assessment meeting), mediation sessions, and legal advice following mediation.
Although mediation isn’t binding by default, your mediator will write a memorandum of understanding which your solicitor can turn into a ‘consent order’. By doing so, you are able to take your partner to court if they breach any of the terms of your agreement.
If you don’t reach an agreement in mediation but don’t want to go to court, family arbitration is an option to consider.
Arbitration is a suitable option for families who are keen to avoid going to court, and haven’t found mediation to be productive for them.
Unlike mediation, arbitration is legally binding. The arbitrator gathers facts and evidence to come to a decision regarding the issues you can’t agree on, such as:
- Financial provision for children
- Disputes between cohabiting couples
- Disputes between relatives
You have the freedom to choose your arbitrator and location of the hearing but the arbitrator has the final say and their decision is legally binding.
We hope this sheds some light on the difference between arbitration and mediation. If you are considering mediation or arbitration, we can guide you along the process. Contact our team of family law barristers.