Mediate, Arbitrate or Litigate. What is the best way to go about helping our clients?

John E Hind
Categories: Uncategorised

I humbly believe that Joshua Rozenberg misses a trick in his article ‘ family awards can be overruled’ when he overlooks making the point that if the principle of self-determination is truly important to separating couples, when it comes to sorting out their finances and child arrangements, they could use mediation (a self-determinative, empowering process) whilst, at the same time, getting the ball rolling with either a court application or referral to the arbitration adversarial process (in which the opportunity to create a bespoke outcome for themselves and their family is very limited because the final decision is ‘ outsourced’ to the arbitrator/judge)

As a former solicitor, having now exclusively offered mediation for over 10 years, I have found, particularly during the last 6 months, that many separating couples seem to benefit from and, in some cases, need the added motivation which comes from, ‘parallel court proceedings or arbitration proceedings’ to be able to reach their own outcomes, which the mediator and their solicitors can, in any event, ensure is fair in law before it is sent to the court to endorse.

This said, a few cases, and not that many I have to say, are completely unsuitable for mediation and mainly where there are un-redressable power imbalances, caused by a range of factors which the mediator and mediation process is unable to overcome.

Let us all (family professionals) do our best for our clients, thinking first and foremost about how we can work better together (in more joined up ways) to provides the kind of integrated family professional support which motivates, enables and empowers our clients to reach their own decisions and create their own financial outcomes, rather than being too quick to direct them down the court or arbitration path.

Our process preferences for our clients will naturally informs and shape our beliefs about what is best for our clients, the advice we give them and emphasis we put on it about the right processes for them and the strategies and skills we develop to help them in these processes. Let us all think more holistically about how we can work more closely together, as mediators, solicitors, arbitrators and financial experts, around the objective of helping our clients to reach their own financial outcomes, providing each of them with the right professional support, at the right time, in the most efficient and cost effective way.

Let’s face it, the vast majority of financial and children cases are not that factually complicated to sort out. It is often more about the couples’ ability to communicate well enough so that they are able to make decisions together in theirs and their children’s best interests. Who is more qualified and equipped to help with communication challenges than the mediator, working closely with the solicitors who may be helping with issues around financial disclosure and the legal options (their expertise), working alongside the neutral accountant and Actuary (using their expertise), all focused on supporting (informing,enabling, empowering etc) the clients to communicate and work together, in the problem solving, solution and outcome focused process of mediation.