Date published: 31/05/23

Author: Margaret Kelly-Edwards
Consultant Solicitor

Margaret Kelly-Edwards, a consultant here at Ketley Miller Joels, is one of the founding members of the Certainty Project.

What is the Certainty Project and how could it help you?

It is an out of court dispute resolution process that combines mediation and arbitration. In short, separating couples attend mediation to see if the matters affecting them can be agreed in discussions. If some issues remain unresolved, they are then determined outside of court in arbitration. It might be just the process for you if you would like to agree issues between you and your partner and if that is not possible, you would like a person to make a decision in a timely fashion.

How did it come about?

Margaret, together with two other solicitors (Julian Bremner and Karin Walker) were chatting about the very real delays in the family court and the impact this has on people separating. They concluded that the delays were, at the very least, preventing people from moving on with their lives – they acknowledged that there could be more serious consequences for people including a detrimental impact on their health both physical and mental. Many couples have children and a drawn out resolution to issues also has a detrimental impact on them that may last well into adulthood. There is also the additional financial cost incurred as a result of delay to think about.

All three solicitors are very experienced family practitioners and qualified as mediators, arbitrators and collaborative lawyers. Margaret also sits as a part-time judge in the family court.

They agreed that a process that provided certainty to the parties in connection with how long it would take to conclude a case and the cost of running the case would be something that many separating couples would find of real benefit.

In discussion it became apparent that although mediation is a great process, a downside is that if issues are not 100% resolved there is a very real risk that effectively the baby is thrown out with the bathwater and the case will move into, or return to, the court process and the parties would have to pretty much start from square one.

They were looking to create a process that could utilise the various processes available for resolving issues between separating parties.

Key Elements of the Certainty Project

The certainty project provides people with:

• Certainty of process
• Certainty of timeframe
• Certainty of cost

How does the Certainty Project work in practice?

When a person meets with their solicitor for the first time, if the solicitor thinks their case might be suitable for the Certainty Project and the client agrees, they will suggest this to the other solicitor, if instructed, if not to the other person. If all agree it is suitable the process can begin.

The next step is to identify the arbitrator and mediator. A list of arbitrators and mediators, who are available to work in this process, can be found on the Certainty Project website.

The couple will then sign up to the arbitration process. This is an important step in the process. Whilst both mediation and arbitration are voluntary at the outset (you cannot oblige someone to take part), once a couple have committed to arbitration they cannot withdraw unless they both agree. In contrast a participant can withdraw from the mediation process at any time, even if the other person would like to continue. This means that Certainty Project matters will proceed to a resolution. There are three potential outcomes that can be reached:

• Everything is agreed in the mediation process
• Some issues are agreed and those that are not agreed are referred to the arbitrator to make a decision
• Nothing is agreed and the arbitrator will adjudicate on everything

The first step in a financial matter is for the solicitors, or the individuals if solicitors are not instructed, to prepare financial disclosure. Full and frank disclosure of finances is a requirement regardless of which process people chose

In a children case each participant must obtain police checks, so that the professionals are satisfied that the case is suitable for the Certainty Project. This is a straightforward process that can be done online and the arbitrator will be able to provide details on how to do this.

The parties will then attend mediation. It is anticipated that 3-4 sessions will be sufficient, however there may be more if the matter is complex and may result in resolution of all issues.

Mediation is not a one size fits all process, rather it is a bespoke and tailor made process. The mediator will meet with each person separately prior to the mediation going ahead to assess the suitability of the people and the subject matter of the dispute for mediation. During that first meeting the mediator will explore how each person feels about the mediation and what might work for them. It maybe that they take part in, for example, classic mediation (both parties in the room together with the mediator), shuttle mediation (the parties in separate rooms with mediator shuttling between) solicitor present mediation (both parties in separate rooms or in the same room or a combination of both) or one of a number of other models.

During the course of the mediation other experts such as financial advisers and divorce coaches can assist if the couple agree. A financial adviser can provide among other things illustrations of what the proposed settlement might look like, while a divorce coach can provide emotional support to one or both people.

In a case concerning children, the parents might consider that a family therapist or a mediator who is trained to meet with the child(ren) would assist in clarifying issues.

If the couple reach a deadlock in financial cases then the mediator may call on other experts and processes with a view to moving things forward. These include early neutral evaluation (ENE) and private financial dispute resolution appointments (PFDR). There are many professionals that regularly undertake this work. Referring a matter to an early neutral evaluation can provide the couple with an independent opinion regarding the parameters of a settlement. At a PFDR the couple can receive indications of what a court and therefore an arbitrator might order if the matter went to a trial. These processes can often assist the couple in reaching an agreement in the mediation process.

If there are issues that just cannot be agreed these are referred to the arbitrator who will make a decision in the same way as a court would but in a much more timely fashion. Depending on what is not agreed the arbitrator has a number of options on how to conduct the arbitration. It might be on paper, on submissions from the lawyers or a full hearing with live evidence. This is decided on a case by case basis.

We believe that from start to finish a case should take no longer than 6 months and possibly complete more quickly. This is much faster and usually lower in cost than the court process.

Margaret Kelly-Edwards is a Consultant Solicitor at Ketley Miller Joels. Should you wish to contact her or one of our other solicitors about The Certainty Project or any other processes available to separating couples, please write to info@kmjsolicitors.com or call 0203 709 6895.

Posted on 31/05/23