What happens if mediation doesn’t work?
There is ever-increasing encouragement for separating couples to use Non-Court Dispute Resolution (NCDR) methods to resolve their differences, with applications to the Family Court being used as the last resort.
One of the most prominent forms of NCDR is mediation. Mediation is a voluntary process, designed to give separating couples a forum to have constructive discussions and negotiations relating to areas of dispute. The aim is to reach an agreement that both people are content with, which addresses their personal priorities and enables them to move forward with their lives.
With the support of a mediator, very many separating couples are able to reach an agreement regarding financial matters and/or arrangements for their children. However, if it is not possible to reach an agreement on all issues, other forms of NCDR can be used to draw matters to a conclusion.
Arbitration
One option would be for the separating couple to appoint an arbitrator to make a decision about any remaining areas of dispute. Arbitration resembles Court proceedings; the arbitrator will hear submissions and/or evidence from each of the separating couple and will then deliver a decision. It is possible to appoint an arbitrator to make a decision about a single issue, multiple issues or the entirety of a dispute. The arbitrator’s decision is binding by law.
Neutral Evaluation
An increasing alternative to arbitration is Neutral Evaluation, also known as Early Neutral Evaluation. The separating couple agree to instruct a neutral expert with a specialism in Family law to give an independent opinion on the merits of the case. As with arbitration, that may be about a single issue, the entire case or anything in between. Unlike arbitration, the expert will make a decision on the basis of written documents, rather than conducting a hearing. The opinion aims to help the separating couple gain an understanding of the relevant factors in their case and enable them to make an informed decision about how to proceed. Unlike arbitration, the opinion is not binding; the separating couple can obtain the opinion and thereafter return to mediation to have further discussions with the expert opinion as a guide.
Collaborative law
At various key stages and throughout the mediation process, the separating couple are advised to seek independent legal advice. If mediation breaks down, solicitors can negotiate on their respective client’s behalf.
An alternative to a traditional solicitor-client relationship would be to instruct a collaborative law specialist. Collaborative law is a special procedure in its own right. In this process, the separating couple each appoint their own collaboratively trained solicitor. The separating couple and their solicitors all meet to try and reach an agreement; sometimes a single meeting is sufficient and in other cases a series of meetings is necessary.
When instructing a solicitor specialising in collaborative law, the client and solicitor both sign an agreement that commits them to trying to resolve the issues without going to court. If it is necessary to apply to Court, the collaboratively trained solicitor must step down and an alternative solicitor is appointed by each of the separating couple. This means that both the client and the collaborative solicitor are absolutely committed to finding a resolution to the dispute.
Family Court
Ultimately, separating couples can apply to the Family Court if they are not able to reach an agreement at mediation.
There are a number of NCDR options available to separating couples and there should always be genuine and meaningful engagement with NCDR. Separating couples can use complementary NCDR processes to resolve any areas of dispute, with the ultimate aim of reaching an agreement and avoiding the need to apply to the Family Court.
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