The answer is yes, but in the right circumstances – see below ……
For some time now there has been an increasing trend, partly pushed for by the justice system but also recommended and encouraged by many lawyers, for mediation to be tried as part of divorce.
It is true of many kinds of dispute that the psychology is almost as important as the law – with litigation via the court system, there can be a tendency for both sides positions to harden as the case proceeds. This is exacerbated by the fact that once legal costs start escalating, the stakes and animosity may also increase.
Setting aside the obvious emotional turmoil, hurt and anger that often go with divorce, if we assume that both spouses are prepared to be realistic about what’s best for any children, there can still be difficult issues over finances. This is especially the case where there are limited finances, as is most often the case, so that both parties cannot have the same standard of living as before. Where there are children, difficulties are compounded by the general position where maintenance will need to be part of the financial arrangements with ongoing commitments for many years ahead.
Mediation in divorce
Mediation is prove to be successful, with a high rate of success. Once you can get both parties to the table, this indicates, generally, a recognition, implied if not express, that they both accept that compromises are required. Mediation works particularly well in commercial situations. With divorce it can be more tricky simply because, as described above, there is often a lack of finality, no clean break, final settlement.
One of the common misunderstandings about mediation is that, once it happens, it’s binding – it’s not. Any negotiation or concessions made are not binding either unless there is an overall agreement, generally properly recorded in a formal settlement document, which may be put before a Judge for approval and therefore court sanctioned.
So, in many divorces, mediation can help to narrow issues but it may not be enough to result in full and final agreement being reached.
What about arbitration ?
The main difference between mediation and arbitration is that arbitration is binding. Generally, an arbitration clauses is included in a contract – importantly, in this way, then parties agree, at a time when things are good between them, what will happen if things go wrong. There is no sting in the situation. To get parties to agree to arbitration, in a situation of possible dispute and acrimony, is more difficult, for obvious reasons.
The advantage of arbitration is that, if it happens early enough, is a big potential saving in costs, time and acrimony. Any arbitration decision, in divorce, still needs to be agreed and sanctioned by the court, but that is unlikely to be problematic. An agreement to arbitrate may be worth strongly considering where :-
- the parties retain a good overall relationship but disagree on certain issues
- both parties are realists
- where assets are sufficient to enable both parties to move on, in the sense of both having their own property and reasonable resources
- where most issues, including most financial issues, have been resolved, but there remain some stumbling blocks to a full agreement.
- may be particularly useful where children, if any are grown up, so a resolution, more in the form of a clean break, is possible
Recent case where arbitration was used for divorce
Read the full case here if you like.
The main points to come out of this case are simple that :-
- The arbitration was conducted using the rules from the Institute of Family Law Arbitrators (IFLA) – website here.
- the parties were married for 18 years and had a 19 year old son.
- available matrimonial assets were between £1.5 million and £2 million
It is not difficult to see why, on the criteria for a successful arbitration, this case was very apposite. The case is also useful reading as it confirms that the court will generally “rubber stamp” an arbitration award,
If you need advice on any aspect of divorce, including mediation or abitration, we would be happy to help, and the first discussion or meeting is always free.
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