This new process option combines the certainty and timescales of arbitration, with mediation’s potential for self-determination and constructive negotiation.
Along with many other practitioners I have been concerned, for some time now, about the cost and length of time it regularly takes to resolve issues arising from relationship breakdown. The long delays in getting court dates results in information needing to be updated often more than once. Whilst waiting for a case to come on for a hearing (often several months), inevitably issues and matters arise that need to be dealt with, increasing both the financial and the emotional cost to clients and families. I am sure many of you have also had the experience of receiving a call a day or two before a hearing to be told that the case cannot be heard due to the unavailability of a judge. Covid19 has compounded the problems that the family justice system has been struggling under for some time.
With these issues in mind, I joined together with Karin Walker and Julian Bremner – two other family practitioners who share my concerns – to develop a concept that pulls together mediation and arbitration under The Certainty Project umbrella.
The project does what is says on the tin by providing certainty:
· Certainty of process.
· Certainty of time.
· Certainty of cost.
The unique selling point is that at the outset the parties sign up to arbitration. Once signed up they are bound to the process and by any decision made by the arbitrator. In the first instance the arbitrator adjourns the matter so that mediation can take place. If, however, it is not possible to reach agreement on all issues, the matter goes back into arbitration for a decision to be made.
How does it work
A client has a first meeting with a solicitor or a mediator, who identifies that The Certainty Project might be a suitable process for the client and their matter. The other party’s representative thinks likewise.
The next step is to identify an arbitrator who subscribes to The Certainty Project. At this early stage it is vital that the parties fully understand that once they sign up for arbitration they are committed to the process and cannot have a change of mind.
If you are not very familiar with the nuts and bolts of the family arbitration process I would recommend that you go to the Institute of Family Law Arbitrators (IFLA) website (ifla.org.uk/), where you will find a wealth of information and guidance, as well as the current rules and the forms that need to be completed to appoint an arbitrator.
On the IFLA website you will also find a list of arbitrators. The list will provide details of each arbitrator’s expertise and whether they are qualified to hear financial or children matters – or both (ifla.org.uk/search-for-an-arbitrator/).
There are a couple of options you can use if you or your opposite number do not want to identify a particular arbitrator. Either one party identifies, say, three arbitrators, with the other party choosing one, or the parties inform IFLA of their needs and IFLA will identify an arbitrator.
Next, the form ARB1FS (finances)/ARB1CS (children) is completed and signed by the parties or their legal representatives on their behalf. This form confirms that the parties are bound by the arbitrator’s decision.
It is now common practice for the arbitrator, on receipt of the form, to convene a meeting to clarify and confirm with the parties the commitment involved in arbitration and discuss the scope of the arbitration. This meeting may take place remotely. So again, and importantly before the arbitrator accepts the appointment, the parties will be informed that once the appointment is confirmed they cannot change their mind and will be bound by the arbitrator’s decision.
Once the parties are signed up to the arbitration the arbitrator will give directions.
In financial matters these will include:
· The preparation of forms E.
· The instruction of experts, where necessary, in connection with eg pensions and capital gains tax.
· A direction that the parties attend mediation, adjourning the matter for this to happen.
It is envisaged that the solicitors (where appointed) will prepare forms E (it is anticipated that, as is usual in mediation, sections 4 and 5 are not completed). The solicitors will also prepare a schedule of assets, highlighting any disagreements.
The parties then move to mediation with their disclosure pack as prepared by the solicitors.
In children matters these will include:
· The first matter to be addressed is safeguarding – in the absence of a recent Cafcass safeguarding letter or section 7 report, this is usually done by applying to the Disclosure and Barring Service (DBS) online (dbs-online.org.uk/).
· The appointment of an expert if deemed necessary.
· A direction that the parties attend mediation, adjourning the matter for this to happen.
It is anticipated that the mediator will be selected from those that have subscribed to The Certainty Project.
It is expected that there will be no more than four mediation sessions (but there can be more at the discretion of the mediator). The limit is in place to guard against one or other of the parties failing to properly engage in the mediation.
As always, mediation is voluntary so one or other of the parties or the mediator can always call time.
At the end of the mediation phase there are three possible outcomes
· Agreement reached on all aspects of the case.
· Partial agreement.
· Nothing is agreed.
Agreement reached on all aspects of the case
If everything is agreed the mediator prepares and sends the memorandum of understanding and the open financial statement to the solicitors, who will draw up the consent order, statement of information and any pension sharing annexes and send these to the arbitrator who will make an award. The making of the award will provide certainty at that stage, prior to the consent order being made.
In children matters if everything is agreed the arbitrator’s involvement comes to an end. The parties and their advisers will decide whether they consider it in the children’s best interests for there to be an order and if they do will apply for an order in the usual way.
If only some matters are agreed the case will revert to the arbitrator to adjudicate on the outstanding issues. This avoids the very unsatisfactory situation where after a partially successful mediation the parties must go back to square one with all issues potentially becoming live again. The solicitors (if appointed) or the parties will inform the arbitrator of what is and is not agreed and the scope of the arbitration will be adjusted to reflect the situation.
Nothing is agreed
If nothing is agreed the matter proceeds to arbitration – there is no need to amend the scope. The arbitrator will, if necessary, arrange a directions appointment and order what has to be done prior to the final arbitration.
Where some or all of the issues go to arbitration a decision will be made as to whether the arbitration can be completed on paper or whether an oral hearing is necessary. If the parties are in disagreement, the matter will go to an oral hearing, but at the end of the hearing a party who insisted on a live hearing may need to pay the additional cost of that. This will be in the arbitrator’s discretion.
Benefits of the process for clients and professionals
At the outset the parties will have a time scale for the resolution of issues either by agreement, partial agreement or with an adjudication. They will have a dedicated team of experts working on their case. Mediations and arbitrations will be fixed at the convenience of the parties.
The professionals involved will adhere to Resolution’s code of conduct “by taking a non-confrontational and constructive approach to resolving family issues while considering the needs of the whole family, in particular the best interests of the children”.
We consider that this is a really important commitment and a requirement of all professionals involved in The Certainty Project. Inclusion on the panel will be by introduction to ensure that all those joining are committed to this way of practising.
To be part of The Certainty Project you do not need to take any further training. We consider that the mediators and arbitrators who come onto the panel will already be very skilled and it is those skills that are important.
The parties will have a very good idea of costs at the outset. As a rule of thumb we believe the financial cost to a party, if the matter proceeds to a final arbitration, will be about 2/3 of the cost of going to court.
The Certainty Project is not prescriptive about charge-out rates and it is for each professional to inform a potential client of their rates in the normal way and to provide them with details of the charge-out rates of any arbitrators or mediators who will be involved in the case.
The costs to the client will depend very much on the stage when agreement is reached or the matter concluded. Solicitors will be very well versed in preparing estimates based on several different scenarios (eg, whether the matter settles before proceedings, at the FDR or following a final hearing).
Our estimate is that from start to end the process will take about 1/3 of the time, compared with the length of time it would take going through the court process. As we know, the backlog in court cases has increased since Covid-19, so the difference in time frames may become even more stark.
This will result in a great saving of clients’ time. The certainty of time that it will take to complete the matter will also provide some comfort to clients in planning for the future and reduce the length of time they are effectively in limbo and unable to move on.
I really do think that this is a great process, pulling together DR processes that already exist and providing work for all branches of the profession but, above all, delivering a service to clients that will provide them with certainty, delivered by committed experts.