After concluding financial mediation , my wife's solicitor changed substantially her demands. Wife and I still cannot agree a financial settlement and I am wondering if it worth going to arbitration rather than court as our respective solicitors suggest. Obvious this would involve considerable cost and time savings but are there any things to watch out for ? any advice on how this works, are our solicitors involved etc and any words of wisdom from experience? Thanks
Well, sir, you know your wife better than I do ( obviously ) and I am
not a clairvoyant, so I will offer some words of ( hopefully ) wisdom.
Don't despise mediators. They have to go through a training course.
They know the law. There are many cases where the mediator's
recommendation was rejected, the parties went to Court. and, surprise surprise, the final outcome was very close to the recommendation of the mediator.
I'm afraid that if you have a situation where the husband is saying his wife won't get a cent and the wife wants everything except the shirt on the husband's back, going to mediation is a waste of time - and money.
Only you can decide whether you - or your stbx - would be likely to
accept a mediator's recommendation,
Arbitration is a little used route for financial disputes resolution but arguably it could and should be used more often. Both parties would have to agree that it should be legally binding in order for it to be able to go ahead. The arbitration can be carried out on the basis of paper evidence or the case can be conducted a bit more like a court case. An application to court would usually be made where there is any doubt about financial disclosure; the courts have the power to order disclosure if any is missing.
You can always start with an application to court to get the disclosure sorted out and then use a private FDR to move things along. This is being suggested as an option ATM because of the problems courts are having as a result of Covid19. At FDR you can settle by agreement and the judge will usually advise on what they think a fair settlement should look like. If you cannot settle the case would be listed for a full final hearing but you would be encouraged to continue to negotiate and settle before then if at all possible.
Sp they questions are: Have you got sufficient financial disclosure on which to base a settlement? Have you had legal advice on what a fair settlement could look like based on all the evidence? Bear in mind that there is quite a large decree of discretion so a final order made by a judge may fall somewhere in the middle of two entrenched positions supported by legal opinion. A lot will depend on how the case is presented and the judge's view of the evidence.