Med-Arb - Information for lawyers
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What is Med-arb?
Med-arb is a hybrid process designed for clients to resolve financial disputes without the need to issue court proceedings.
The model that I am offering uses separate mediator and arbitrator, rather than one person acting in both roles. This means that the discussions held in mediation remain without prejudice. The mediator will not share information about the parties’ proposals or interests with the arbitrator, so that the parties can speak freely in the mediation, without worrying about the impact of their comments on any arbitrated award. There will be a ‘Chinese Wall’ in this regard, so that the arbitrator has no access to documents relating to mediation discussions. Only the financial disclosure produced within the mediation will eventually be imported into the arbitration phase, if required.
It is beneficial to those parties who are keen to reach an agreement together, or otherwise, for the matter to be ‘fast-tracked’ to arbitration for a legally binding decision.
The starting point is to consider the likelihood of the parties resolving their differences if they were to participate in mediation. You should give particular attention to views and interests that both parties share and the extent to which you consider both parties are entering into the process with a genuine wish to reach an agreed solution. If this is in doubt, it may be that the matter would be more suited for arbitration from the outset.
The next consideration is whether there is or is likely to be a power imbalance between the parties. The process may not be suitable for those cases where either party has suffered from depression, domestic abuse, substance or alcohol abuse or feels intense anger when drawing on their situation.
I will conduct our own screening process with your client at the initial appointment so as to ensure that the mediation-arbitration process is suitable for them individually and for their set of circumstances. However, I recommend that you undertake your own screening process so as to ensure that costs are not wasted when exploring the process. You are welcome to contact us if you require further information on screening and identifying cases that are suitable for med-arb.
If the case is assessed to be suitable, I will arrange for your client and the other party to sign a mediation-arbitration agreement. This will commit your client to engage in mediation and, in the absence of an agreement being reached at mediation, a final award at arbitration will be made. The agreement can be brought to an end if the parties jointly withdraw from the process or if the arbitrator decides to bring the process to an end, without an award being made. Neither party can unilaterally withdraw from the process, and there is, therefore, a risk that the mediation-arbitration process continues if your client decides they no longer wish to participate, with an award being given in their absence. However, the risk of this happening can be reduced significantly so long as you and the mediator and arbitrator ensure that the parties and their set of circumstances suit the process.
The mediation process is very similar to that widely offered. The difference is, as mentioned above, that both parties are tied into participating in the med-arb process unless both agree to withdraw, whereas in the traditional mediation process, either can withdraw from the process individually. However, at any stage your client can chose to end the mediation phase of the process, and go into the arbitration phase.
After mediation – the arbitration
The arbitration will be conducted by Felicity Shedden under the rules of the IFLA scheme. The process of arbitration includes both parties and their lawyers, if they have representation. The exact procedure will be tailored on a case by case basis, but may involve written submissions only, oral submissions or a full hearing with cross examination. The disclosure given within the mediation phase will be imported into the arbitration; any additional disclosure required will be decided on the issues.
The timescales are dependent on the parties, so the matter is likely to be resolved much sooner that if it had been dealt with at court. Comfortable facilities will be provided for any hearing, and your client will be guaranteed a fully informed, fully prepared, specialist family tribunal.
Shortly after any hearing, or filing of written submissions, the arbitrator will deliver a written award, setting out in full the reasons for the decision. Depending on the nature of the case, your client may then wish to file a consent order, for example, within divorce proceedings, to record the terms of the award. If required, the arbitrator can draft an order as an annex to the award, with suggested wording for the clients to use.
Advantages of the Med-Arb process
The process is suitable for those clients who are willing to reach an agreement through the mediation process, but who, if unsuccessful in reaching an agreement, are prepared for their case to be reviewed by an arbitrator to make a binding decision.
In general, med-arb can provide a conclusion to your client’s case much sooner than issued court proceedings. There are no court hearing date delays and the clients are guaranteed an outcome within a single, streamlined process.
The timescales for completion of the entire process are dependent on the parties and how quickly they reach an agreement, or decide to move to arbitration. If an agreement cannot be reached you can expect the arbitrator to make a decision within a maximum of two weeks, usually less, once the parties have prepared their case and any hearing (if needed) has taken place.
If mediation is unsuccessful you can be assured that your client’s case will be arbitrated by a family law specialist who has a wealth of experience in dealing with these types of cases, unless the parties jointly withdraw from the process or the arbitrator decides that the case is unsuitable for arbitration.