What options are there if there is an impasse in mediation? Guest blog by Fiona Hay, Arbitrator and Barrister

How can mediation use Early Neutral Evalution? How can it work with Arbitration?

If mediation has not managed to find suitable solutions, there are a number of Alternative Dispute Resolution (ADR) methods than can be combined with mediation to assist in finding resolution.  The practice of combining two ADR models to resolve family disputes is gaining in popularity.

MedArb is now a well-established hybrid model in the family sphere. This option moves the dispute out of mediation straight into arbitration. As many would agree one of MedArb’s strengths is the binding nature of the arbitral award. However, as family law practitioners are all too aware, this is also one of its weaknesses as some parties tend to shy away from the loss of control associated with arbitration. This combined with anxiety occasioned by the responsibility of selecting the arbitrator has(anecdotally at least) prevented family arbitration from catching on as might have been expected.  

 

A hybrid option which circumvents this arbitration phobia is MedENE. In this model the parties sign up to Mediation and if that fails or becomes stuck, they agree that they will enter an Early Neutral Evaluation (ENE) process. ENE has the advantage of being (a) highly flexible (b) non-binding, and (c) relatively cheap. To take these in turn. The flexibility is in the forum’s capacity to provide couples with almost any format of presentation. In MedENE (where disclosure will almost certainly have been provided through the mediation process) couples can elect to proceed to written ENE based on disclosure only, to written ENE based on disclosure and short statements (with replies if sought) or to a hearing-based ENE at which both can state their positions. In ENE conducted outside mediation representation is not necessary although it can be facilitated if that is the parties’ preference. In MedENE representation is unlikely, although both parties may well be taking advice outside the MedENE process. The ENE can be delivered in any form although we have found that parties prefer a written advice modelled on an arbitral award/judgment.

The non-binding nature of ENE is an advantage in that it should encourage those intimidated by a binding process to sign up. The corollary of the non-binding nature might be thought to be a greater failure rate, but this does not appear to be the case. Most parties who have committed to the process reach agreement in accordance with the indication. The prospect of the successful outcome is further enhanced by the availability of the mediator to conclude the process after the evaluation has been provided. In relation to costs, the ENE process is very much cheaper than any court-based remedy (and I include here voluntary disclosure/pFDR models). It effectively requires an evaluator to spend anywhere between half a day and (say) two days evaluating and drafting. The costs is likely to be as low as £2,500 and unlikely to be higher than £5,000.   A final advantage is that evaluator can be retained (as part of the initial retainer) to advise on any issues that arise in drafting an order. As we know that aspect can sometimes lead to a great deal of end-point cost.

Both arbitration and ENE work well as stand alone dispute resolution methods, but their use in mediation situations also has a valuable role to play when required.

Author- Fiona Hay, Arbitrator and  Barrister, Harcourt Chambers

 

If you would like to know more about how mediation can help, book a call on our website www.familymandm.co.uk or email us at hello@familymandm.co.uk

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