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The Benefits Of Mediation & Arbitration In Divorce

February 13, 2019 Family Law

The prospect of divorce proceedings looming over estranged couple’s heads can often be a daunting notion for all involved. Through the traditional court room process, the pursuit of an end-agreement can see long periods of time consumed and high levels of legal fees incurred. Additionally, the adversarial nature of this procedure regularly results in parties’ relationships suffering further aggravation thus contributing to increased levels of animosity. However, the resultant effects of this are most likely suffered by children and relatives rather than the parties themselves. Coupled with dealing with these added stresses, parties often find themselves having to negotiate the hurdles the inherent in the bureaucratic judicial system.

Couples wishing to avoid this tiresome process can attempt to settle their grievances privately, absent of legal advice. This can, however, be hostile and often leads to efforts ending in stalemate with neither party willing to concede ground. That then creates a problematic position, on one side is the daunting and lengthy court-room process, while on the other is the implausibility of an agreement being reached otherwise. Our team of can advice you on the best legal route for your specific circumstance.

However, contrary to the popular image that divorce proceedings are only solvable by going down either of these two routes, there are others offering separating couples a glimmer of hope.

Divorces are rightfully a sensitive issue and so clearly then deserve a more delicate process focusing on parties’ specific needs and interests while thwarting the chance of relations deteriorating further. This need has indeed been recognised of late and has since led to a rise in divorcing couples opting to conclude their parting agreement via relatively unorthodox means. The most prominent of these are the processes of arbitration and mediation.

Both arbitration and mediation are processes conducted in private and are built around the divorcing parties’ mutual convenience. This, unlike a publicly accessible court room, allows individuals to communicate their contentions in an environment free from the scrutiny of their peers and onlookers. Consequently, negotiations then allow for the possibility that personally sensitive issues can be raised with the confidence they will remain private. In addition, the time and place in which these processes can take place is dictated by the parties themselves. This prevents the chance of further disruption to the couple’s working lives and reduces the likelihood of it becoming an additional source of stress. Our experienced family law solicitors can advise you the best legal route for your specific circumstances.

However, it is not practical nor logistical benefits alone which are offered by these methods. Both arbitration and mediation possess a uniqueness that is vital in ensuring divorcing couples arrive at an agreement more closely suited to the specific circumstances that were previously impossible to settle.

The process of arbitration in relation to divorce begins with the appointment of an impartial third-party. This individual, the arbiter, will consider each of the couple’s separate issues in turn before delivering a judgement outlining how the divorce shall be resolved. Since each party will have agreed so beforehand, the end result will be binding. However, while the ultimate decision-making power is held in the hands of the arbiter, the divorcing couple still retain a significant degree of control. Alongside deciding a time and place for the negotiations to occur, the parties are also allowed to choose their arbiter based on the specific area causing the impasse on their agreement. This is due to the fact that many arbiters offering their services have specialised expertise in commonly contentious areas such as child maintenance or the distribution of property. This can mean a more efficient procedure for all involved, saving yet more time and money while arriving at a more suited end result. However, while this process is generally quicker, more private and more specific to individual’s needs, it does not depend on the equal cooperation of each party to come to a decision. This can often result in one side of the table feeling aggrieved with the result and so poses significant difficulties in retaining positive relations post-divorce.

Mediation, on the other hand, is a process underpinned by the principle of respectful communication. It begins with an impartial mediator listening to each parties’ concerns before attempting to find common ground on which they can agree on. This allows for relations between the couple to be protected from the high chance of deterioration seen so often. Giving both members concerned an equal voice can result in concessions being made in good faith which end in beneficial compromises. This approach is significantly more child focused than the others. Since communication is conducted respectfully through the channel the mediator provides, issues regarding a couple’s children can be addressed in a light that places the emphasis on their best interests before others. Also, unlike an arbiter, the final decision comes not from the mediator but from the parties themselves following the compromises they have made. Evidently, an agreement the product of the couple’s own communication will be one more likely to be respected and upheld in the long run, keeping animosity to a minimum. However, due to this major reliance on a mutual cooperation between each party, if one side refuses to be involved then mediation can often see minimal progress and stay in deadlock.

While both of these alternative methods of divorce resolution clearly offer couples the chance to avoid the problems which plague the current court-room procedure, the final responsibility ultimately rests on the parties’ individual willingness to end their dispute in this way. That being said, the opportunity both options afford to end proceedings quickly and effectively offers a markedly more efficient process than the traditional way. These benefits alone should be reason enough for parties to at least consider this growing alternative.

When the time comes where both arbitration and mediation have truly entered into the mainstream, it is inevitable that we will see those deciding to divorce being afforded the chance to do so absent of the usual sour taste left by the process so many have to endure today. And that is something everyone can agree on.

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