For a number of people coming into family mediation there is a real fear around what happens if they don’t find a resolution in mediation. Let’s face it life after separation is hard enough without investing time and effort in something that doesn’t elicit a resolution. Those going through a separation worry about family mediation costs and it is natural to ask the question what will happen if it doesn’t work. The only dispute resolution process that guarantees a result is where another person decides things for you which means the court process, or arbitration. In all the other dispute resolution processes the objective is for the couple involved to be supported to find their own tailor made resolution. For this reason those processes cannot be guaranteed because they rely on the couple involved being able to sketch out a resolution and to both agree to it. Clearly there are benefits in arriving at any outcome that you have defined and crafted yourself with your children in mind. There are also ways in which you can get the best out of the family mediation, and any other dispute resolution, process. But that’s another blog! The purpose of this blog is to look at exactly what happens when family mediation doesn’t work or breaks down.
Where one or both of you agree that family mediation is no longer a viable process you then have to look at what other dispute resolution process might help you to resolve all or the remaining issues (where you have found common ground on some issues). If a process where you both determine the outcome is still a viable option then you can look to a different process, and a different level of support to help you finalise the outcome. Resolution have a guide which explains all the different processes that exist to help couples who separate to resolve all the issues that crop up.
If you are unable to work together, or to see what is the right outcome, then you may need to use a process where a qualified person makes a decision for you as to what the outcome should be. This includes the court process and also arbitration. Most people have some understanding of the court process. If going to court is like having an operation on the NHS then arbitration is like going private. Everyone uses the same process in the court system whereas the process can be tailored to your individual circumstances in arbitration. Arbitration can be used to decide issues concerning children or money and the arbitrator can give a ruling on all issues or just the issues you haven’t yet resolved. We have prepared a table below on the pros and cons of arbitration and the court process to help you understand the difference.
Court Process
Pros:
You only have to pay a fee to use the service. There are no other fees for using it.
Only the court has the power to order someone to do something or to make orders protecting someone.
It gives you a final outcome.
Cons:
The same process is used by everyone regardless of whether you have only one issue or lots of issues, £5 or £5 million. This may mean that you undertake steps that are unnecessary for you.
The courts are struggling with the volume of work and this has led to lengthy waiting times for hearings.
Attending court can be a stressful experience especially as you may well end up waiting with your ex partner in the same waiting room.
Arbitration
Pros:
The process can be tailored to your circumstances so you don’t take unnecessary steps and you get the right experts to help you resolve issues.
It is generally a more pleasant experience to attend the solicitor or barrister acting as your arbitrator’s office rather than the court room. You will also usually have a separate place to wait to your ex partner. You may also be able to use a separate room to consult with your lawyer if you have one.
The process achieves a final outcome as the award of any arbitrator is automatically lodged with the court and given the force of a court order (there is a recognised process for this).
You can often achieve a resolution much more quickly using the arbitration process.
Cons:
You will have to pay the arbitrator’s private fees. These can vary significantly.
Both parties have to agree to going to arbitration so you won’t be able to use the process unless both you and your ex partner agree to do so.
We hope this helps you to understand your options in the event of a resolution not being achieved in family mediation. If you are concerned about progress in your family mediation meetings then talk to your family mediator about how they think you’re doing and what other support or information might help you both to move forward.
