Mediation has been around for many years and throughout that time it has been pushed by the government as the future for resolving family disputes. Do we really believe it is the way forward or is it just another cost cutting exercise by the government alongside the demise of legal aid?
Arbitration is another option and despite the increasing number of trained arbitrators there is no real evidence that it is becoming a force.
Both methods of dispute resolution do have their place but are not for everybody. People are now forced to speak to a mediator before they issue proceedings but it is too early to say whether this will reduce the court traffic – I suspect not.
And now we are faced with a new concept namely Mediation-Arbitration or in buzz terms “Med-Arb.” So can a mediator who has seen the parties showing their vulnerabilities turn into an arbitrator and play a quasi judicial role? This process is becoming widespread in Canada and it seems to work because family mediation is somewhat different to the UK.
Mediation in Canada is similar to good-old solicitor round-the-table meetings which we all know can be very effective and helpful to clients who often settle in such circumstances but with the benefit of legal advice. Mediation in Canada takes place with clients having the benefit of their legal advisers with them. So you can see how the mediator could quite happily change their hats and become an arbitrator. The focus in such cases is establishing a deal. I suppose the issue of what is ‘without prejudice’ could be a problem for the arbitrator but the Canadians seem to brush that one under the carpet by saying they have forgotten what is said anyway! One Med-Arb indicated that in mediation she was trying to find a middle ground between the parties whereas arbitration involved strict application of the law
In conclusion, yet another choice to put to our clients with a view to removing the case from the overworked courts where greater delay is becoming commonplace and that in itself increases the parties stress. So watch this space but Caveat Emptor before everybody runs off to get retrained.
By Gillian Davies, solicitor and mediator in the family law team
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