Difference between divorce mediation and arbitration
November 2017. Mediation and Arbitration are both processes that aim to help parties involved in a lawsuit, or potential litigation, resolve their disputes. Both are considered forms of Alternate Dispute Resolution (ADR). However, Mediation and Arbitration differ in the type of processes they use – and ultimately, who makes the decision on how the matter may be resolved.
Arbitration is like a court process, but instead of presenting your case to a judge, the case is presented to an arbitrator. The parties still provide testimony and give evidence. While the process of arbitration may be less formal than a trial, the parties are still looking to a third party to make the decision. (Whether the arbitration is binding or non-binding is not a part of this article.)
Mediation, on the other hand, is a process in which the parties ultimately make their own decisions. The parties negotiate, or discuss, their issues, and their concerns, with the assistance of a third-party neutral – the mediator. The mediator works with the parties to help them find a mutually satisfactory resolution of their issues. A resolution is not reached unless all sides agree.
Why not just “let the judge decide?” Why bother with ADR? The traditional method for parties to resolve legal disputes is by filing a lawsuit. Once the litigation begins, the parties must adhere to court procedures, paperwork and timeframes. Since most attorneys, in family law, bill at an hourly rate – the procedural requirements of litigation can consume a great deal of time and – time equates to money. Litigated cases can take many months, or even years, to come to a conclusion. Even then, there may be post-judgment disputes.
Most notably, if the case does not settle during the process of litigation, through negotiations, a judge will make the decision in the case. In family law, that may be a decision about – custody of children, support, division of assets and debts, and other issues.
The only control parties have in the litigation process is how to present their case, and whether they will consider a settlement. Ultimately, if there is a trial, the judge will determine the outcome.
An important consideration of choosing mediation over litigation, or over arbitration, is the opportunity to maintain some control over the process and the outcome. You will have the opportunity to discuss your concerns behind your positions on various issues, and work with the other side to arrive at a settlement that you both agree on. You may not get everything you want, nor does the other side, but you jointly agree on what the outcome will be. This may involve some “give and take” and concessions, but since the decision is mutual, compliance with a mediated agreement is usually high. The putting aside of disputes, and the integrity of the process, helps preserve relationships. This may be especially important in family law cases, where there may be an ongoing relationship with the other party, due to children and extended family.
In litigation, there is little, or no, control over which judge will preside over your case. When you voluntarily agree to participate in the mediation process, you have the freedom to select your mediator. This puts you in the position to better ensure that the professional you will work with has the education, experience, background and subject matter proficiency to facilitate in your mediation. There is also the human factor, of feeling comfortable with the mediator of your choice.
Whether you choose mediation or arbitration, making the decision to participate in ADR can be an empowering. In conclusion:
a) In arbitration, you present your case to a third-party arbitrator, who renders a decision.
b) With mediation, you and the other party work directly, with the assistance of a third-party – a mediator, to help you arrive at an amicable resolution.
Choosing mediation may better serve all parties concerned.
If mediation is not right for your legal matter, please be advised that Mattleman, Weinroth & Miller, P.C. is a full-service litigation firm. We can assist with all of your litigation needs, including but not limited to divorce, custody, child support, and spousal support.