The Route From Mediation

Parties who commit to mediation in the main part succeed in settling their disagreements. However, a significant minority fail to reach agreement. Until recently, the only recourse left to them was for one of them to start court proceedings. Now there is a better alternative -arbitration.

Why arbitrate?

Going through the court procedure for financial remedy involves making no use at all of the hard work carried out in the mediation process. As part of that, the parties will have given adequate financial disclosure and discussed and narrowed the issues. The exact nature of what they disagree on will be known, as will be their respective positions. All that is actually needed is a decision. In relatively few cases is there any real need for exchange of forms E, statements of issues, questionnaires and so forth. There is no need at all for further delay and expense.

Armed with the material they have produced for the mediator, the parties could easily appoint an arbitrator to take the decision they have been unable to take for themselves.

How to move forward to arbitration

In the best of all worlds, mediation ends with a memorandum of understanding and the parties delivering this to their solicitors to prepare the consent order. If the understanding simply hasn't been reached then if the parties agree, they should look to exit the mediation with the financial disclosure pack and a memorandum of differences. In the Court process, a statement of issues has to be filed, so a document setting out the scope of their disagreement is nothing more than what they will need to produce in any event.

Armed with these documents, the parties can approach an arbitrator directly, or through their solicitors, whichever may be preferred. Either way, the need for further financial disclosure and written pleadings will be very limited or non existent. The parties can proceed quickly and economically to the decision they were unable to reach for themselves. The Court need not be troubled with their affairs at all.

Who will take the decision and how?

NFAS arbitrators are all part time judges -- in other words, exactly the sort of people who would be taking the decisions at court. A key distinction, however, is that they all have a professional background in family finance. At court, of course, you may encounter a judge with little or no experience of the field.

In virtually every standard case, a fixed arbitration fee is set at the outset, so the parties know immediately what it will cost and can identify how it will be paid.

The arbitrator applies exactly the same law as a judge would use in court. This means that the arbitrator will refer to the list of factors set out in section 25 of the Matrimonial Causes Act 1973 and any relevant case law, in just the same way as a judge would.

The arbitration can be decided in the most straightforward cases simply on the basis of written documents without anybody needing to attend a hearing at all. Hearings can be conducted remotely using video conferencing or at a venue convenient for the parties. The arbitrator will travel to the parties and not vice versa.

In more complicated cases, there can be as many live discussions with the arbitrator as are needed and for as long as is necessary. The arbitrator will decide what hearings are necessary, in discussion with the parties and/or their representatives.

What cases are best suited to arbitration?

Standard financial remedy cases are ideal. The only ones which really need to be at court are where a freezing order is needed or a penal notice needs to be attached to an order. Of course, even with these, if compliance results, there is no reason why the Court application could not be stated to enable arbitration to take place once you are satisfied that the arbitrator will have all the necessary information to reach a just decision.

Applications to vary maintenance are ideally suited to arbitration, provided the parties give sufficient disclosure. The Court prices for variation is generally needlessly slow and detailed, with the result of disproportionate cost which eliminates any chance of either party being better off at the end of it. Arbitration can bring this back under control.

Limited issue children applications, such as which school a child should attend, or whether a holiday abroad can be taken are also suitable, especially where time is of the essence. However, if a report from CAFCASS will be needed, only a court will do.  NFAS does not provide children arbitration but recommends Hampton Family Arbitration.  You can access their website here:

TOLATA applications and Inheritance Act applications are also within scope and are directly enforceable as they fall within the civil jurisdiction rather than the family jurisdiction. In other words, there is no need for a separate approval from the court itself.

What parts of the country does NFAS cover?

NFAS covers the whole of England and Wales. Obviously arbitrations decided on written submissions only or by videoconferencing are the easiest to arrange. If an arbitration hearing is required, the arbitrator will come to the location most suitable for the parties. The only additional costs are the arbitrator's travel and overnight accommodation if needed. All arbitrations operate on a fixed price basis so there is no additional charge for travel time.

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Early Neutral Evaluation

ENE is a process by which the parties to a dispute agree to instruct a neutral professional/expert to provide them with an evaluation of their respective positions on the whole of the dispute, or some element or elements of it, before they are actually in a position to proceed to a final resolution.

What is the purpose of ENE?

ENE is an opportunity for the parties to receive an independent and neutral assessment of what the likely outcomes in their dispute would be if it had to be decided by a judge. Very often parties enter mediation with an unrealistic expectation of what they might receive, especially in financial matters. If there is a clear and agreed statement of the parties’ financial positions, adjusting expectations to bring them into an appropriate range can be accomplished by a recommendation to seek ENE. After ENE, mediation can resume with a much improved prospect of agreement being reached because the parties have now received clear guidance as to where a reasonable range of settlement lies.

Who can provide ENE?

Any suitably qualified and experienced legal professional who does not represent either party can supply an ENE. A clear advantage is gained where the professional holds judicial office and actually it takes those decisions in court because this is precisely the sort of person that the parties can expect to encounter if they do not reach agreement.

How is ENE obtained?

NFAS can provide ENE on the basis of written information only, by video conference with the parties or by prearranged meeting. In effect, the parties have the facility to undertake a private FDR outside the court system, with the undivided attention of the evaluator and without the need for the full court procedure to be engaged first.

What does ENE cost?

All NFAS services are provided at fixed-price. Once basic information has been supplied about the parties’ finances and the scope of their disagreement, a fixed price is given, calculated on the basis of how much time is likely to be needed to provide an evaluation and which particular type of delivery is preferred.

How does NFAS provide ENE?

As with arbitrations, booking the service, providing the relevant information and documents and payment is all carried out through a secure online portal. The evaluator is prepared to travel anywhere within England and Wales if a meeting is required but otherwise all communications are online and secure.

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