Lance Ranger, Attendus Company AG director, is a practising UK solicitor. He is the director and CEO of Attendus, a family office and fiduciary company that provides professional legal and business services. This article will look at arbitration and mediation, identifying the main similarities and differences between them.
Arbitration and mediation are both key processes used to help resolve family disputes out of court. Although these processes can complement each other, in several respects they are polar opposites.
Arbitration is essentially a field of private law that requires both parties to agree on a third-party arbitrator between them. This individual needs to be an expert in their field, as the arbitrator will be responsible for adjudicating the dispute between the parties. Essentially, the arbitrator sits in place of a judge in court, hearing the matter fairly and impartially before coming to a determination that is lawfully binding.
Whereas in court judges review all evidence and may choose to ignore personal agreements made between former partners, in arbitration, if the parties have mutually agreed on 7 out of 10 decisions (for example) the arbitrator will honour these agreements. Rather than revisiting other issues, the arbitrator will focus on simply resolving the remaining issues. Arbitration may be conducted via an in-person hearing or completed through paperwork.
A bespoke process that can be tailored to the parties’ unique situations, arbitration has multiple benefits. Unlike a court hearing, not only does each party have significant input in terms of selecting an arbitrator but they also have control over the timing of the process, enabling them to tailor it to their schedule and that of their children. Arbitration is effective due to its speediness and simplicity, avoiding long, drawn-out court processes, which can be incredibly costly financially, as well as potentially wreaking significant emotional wear and tear on both sides. Arbitration hearings are usually much shorter than court hearings, meaning that what might take two full days in court to decide could be settled in a one day arbitration hearing, helping to save significant funds.
While it is often useful for the parties to instruct a solicitor or barrister to represent them in arbitration, they also have the option of representing themselves as a private process. In such circumstances, arbitrators strive to create a level playing field, ensuring that both sides of the argument are properly heard.
When selecting an arbitrator, the parties are guaranteed a highly-trained expert. In addition, they can select an expert who specialises in matters pertaining to the specific requirements of the case. Although one party may not like the decision that the arbitrator eventually arrives at, at least they have the option of providing input into selecting an arbitrator with the requisite expertise and skills to arrive at a final decision. Arbitration is designed to be a less formal and more comfortable process for all parties involved in the dispute.
Mediation is a process between two parties who seek to come to an agreement with each other in order to resolve their dispute. It is only appropriate where the parties are still speaking with each other and able to enter into constructive dialogue. The role of the mediator is to facilitate conversation between both sides, keeping negotiations on track and avoiding the roadblocks that can occur when parties try to come to an agreement between themselves.
The role of a mediator is not to provide legal advice. Rather, they are there to help the parties come to an agreement between themselves, putting in place arrangements that both sides are satisfied with. Mediated agreements are usually highly successful, with each party having been part of the process, committed to the outcome and generally adhering to the terms of the agreement.
Where mediation involves children, research suggests that this channel of negotiation helps to lower tensions that may otherwise exist between the parties, enabling parents to step back from the difficulties that caused them to separate in the first place and helping them to coparent more amicably and effectively.
Mediation is not burdened by the need to follow precise outcomes in the same way that a court case is. Mediation solutions can therefore be tailored to individual circumstances, arriving at outcomes that will work for both sides, rather than being confined by what the law would impose. Mediation also presents an opportunity for the parties to discuss matters that are important to them both but not relevant to the law (and would not be considered by a court).
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