Mediation is a process whereby Clients arrive at their own solutions or settlement proposals in relation to children or financial issues via negotiation and discussions facilitated by an impartial Mediator. The Mediator assists the Clients in identifying the issues they need to resolve and finding the most sensible and practical solutions for the family.
The Resolution Model involves the Clients in a number of short sessions (1½-2 hours) over a period of time in which they meet together with the mediator. In financial matters, one of the Mediator’s tasks is to provide appropriate documentation to assist the Clients in providing disclosure. The Mediator may also flag up where further financial disclosure or expert reports may assist in the decision making process. Mediators often recommend when a Client may benefit from legal advice within the process, as the Mediator’s task is not to advise on legal matters but to gather information from the Clients and to give information where appropriate in order to assist them in reaching their solutions. Where children are involved the Mediator can assist parents in focusing on their children’s needs and to create a tailor made joint parenting plan.
At the end of the process the Mediator provides the Clients with a Memorandum of Understanding, which contains their acceptable proposals for settlement which are then taken to the Clients’ respective legal advisors for the legal formalities to be completed.
Mediation has the following advantages-
- Reduces tension and hostility
- Solutions are tailor made to the Clients’ needs
- Decisions are made on an informed basis
- Clients are able to communicate and co-operate
- Clients are able to explore and examine options in a safe environment
- Clients are able to appreciate and consider the needs of their children
- Savings in costs as disputes may be resolved more quickly and efficiently
This is an innovative method of dispute resolution in which both parties and their respective lawyers, trained collaborative lawyers, all work together for the purpose of achieving a fair settlement outcome without going to court. Indeed, the Clients and their lawyers sign a Participation Agreement setting out the Clients’ and lawyers’ respective obligations to each other and the process. The incentive is that in the event the process breaks down, the lawyers are disqualified from representing their collaborative Clients in court proceedings. In this way, everyone invests in making the process work.
Issues are put on an agenda, discussed and eventually resolved during face to face meetings between all four signatories to the participation agreement. Outside of the four way meetings, each Client will have a two way meeting with their own lawyer and the lawyers will also engage in two way meetings between themselves to consider how best to progress a case.
Other professionals can be involved although not necessarily in attendance at meetings. Sometimes expert help is needed, for example with respect to the treatment of pensions or if a Client or their child is having difficulty coming to terms with the family issues, a therapist or counsellor may be brought in to assist. Eventually, when a settlement has been reached both lawyers can draft the formal legal document together and submit it to court for approval, without either Client having to attend court.
Collaboration has the following advantages-
- Everyone enters the process in good faith so it is quicker and less acrimonious
- If things become difficult the Clients can be reminded of their obligations as stated in the Participation Agreement
- Clients set their own agenda
- Clients move along the process at their own pace
- There is full and frank disclosure so decisions are reached from a position of knowledge
- Collaborative process helps to keep the channels of communication open
The Institute of Family Law Arbitrators (IFLA) developed the arbitration scheme to enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal setting than a court room. It is also expected to save court resources and reduce pressure on the already stretched family courts.
In order to begin this process the Clients sign a form (ARB1) agreeing to arbitrate and to adopt the IFLA Rules. The Arbitrator is offered the appointment and then seeks the Clients’ agreement to the terms of appointment. Once the appointment is accepted, the arbitration begins. The Arbitrator contacts the Clients to elicit information about their dispute and to canvass views as to procedure, giving the Clients a degree of autonomy absent from litigation. There is then a preliminary meeting for case management directions as appropriate, in the course of which the Arbitrator decides on the procedure to be adopted. There are interim applications where appropriate and hearings. Some matters may be dealt with on paper.
Where there is a hearing, Clients are usually represented and are cross examined. Legal representatives then make submissions which are considered by the Arbitrator who will, usually within 28 days, make his or her final award in writing. The Arbitrator is entitled to withhold the award until payment is received for their services. The Clients then apply to the appropriate court for an equivalent order with the object of the court either approving or enforcing the award.
Arbitration has the following advantages-
- Clients select their decision maker from a panel of qualified Family Law Arbitrators
- Arbitrator is continuously and directly involved once appointed
- Confidentiality, adaptability and flexibility within the adjudication process
- The process avoids delays and standardisation resulting in speed and costs savings compared with conventional litigation route
- Versatility in covering all levels of financial dispute as well as resolving discrete issues in a case
- Suitable for those who cannot agree or have already reached impasse using other dispute resolution methods
- Finality and enforceability similar to that which is available through litigation