Mediation Vs. Arbitration

Thinking of divorce or child custody cases, the first thing that springs to many minds is going to court, sitting in front of a judge, and participating in a trial. While that does happen, that’s not the only way to end a marriage or settle other family law matters. Multiple forms of alternative dispute resolution exist. The two most common are mediation and arbitration.

Though they’re similar, there are key differences between mediation and arbitration in divorce.

When weighing options, it’s important to know how they compare and which is the best fit for a given situation. Here are the basics, which will hopefully help you decide if one or the other is right for you and your case.

Mediation Vs Arbitration in Divorce and Child Custody

Just because these are two popular options, doesn’t mean they’re the only choices. If things between you and your spouse are amicable, or you can at least be civil, it’s possible to negotiate a settlement without either mediation or arbitration. These are simply two useful common tools when it comes to divorce, custody, and other cases.

What Is Mediation?

Used in civil cases like divorce, child custody, and other family law matters, in mediation, the two sides work together with a third-party facilitator, to reach an agreement.

In this interactive process, the moderator guides the two sides through conflict and disagreement towards a mutually beneficial settlement.

This form of alternative dispute resolution is commonly used when it comes to child custody, creating a parenting plan, the division of property, determining spousal and child support, and other issues.

Mediation can be an effective tool for divorce or custody cases, but please note that parties considering this should be well-informed about the process before beginning.

Contentious or high-conflict divorces are often not well suited for mediation— couples that are amicable, willing to compromise and communicate openly tend to have the most success.

Related Reading: Is Summary Dissolution the Answer to Your Divorce Woes?

What Is Arbitration?

As in mediation, when it comes to arbitration in divorce, two sides voluntarily agree to handle the matter privately. Again, an outside third party meets with both sides.

Instead of just facilitating the process, however, in arbitration, the moderator passes a binding judgment.

Each spouse presents their case and the objective outsider renders decisions on custody, maintenance support, division of property, and other areas of conflict. In this way, arbitration resembles a trial, though the proceedings are far less formal.

Related Reading: What to Expect From a Divorce Hearing

Primary Differences

While they’re similar in process, one of the key differences between mediation and arbitration is that, as we mentioned, arbitration is legally binding while mediation is not.

With mediation, though you and your spouse mutually agree to go through the process, both sides must approve the terms.

Mediators do not rule on the matters at hand, they simply facilitate the deliberation. Ultimately, it’s up to the two sides to reach an arrangement and adhere to the deal.

Though it isn’t a trial, arbitration bears some of the hallmarks of litigation. Both sides have the opportunity to present their case, lay out the evidence, and call witnesses.

Instead of exhibiting in front of the bench, the case goes before an arbitrator. This individual is usually an outside lawyer or retired judge. Once each side pleads their case and the arbitrator rules, passing down a legally binding judgment.

Related Reading: What Is In A Divorce Decree?

Do You Need A Lawyer For Mediation or Arbitration?

One benefit of both mediation and arbitration is that they don’t necessarily require a lawyer. This saves participants that extra step, not to mention the associated legal fees.

There are situations, however, where you want to consider hiring an attorney. If your spouse has one, for example, it’s a good idea to seek representation of your own.

Someone who has been through the process before knows what to look for and can guide you along the way. It’s also worth the time and expense to have someone make sure the final agreement is fair before signing anything.

If you do hire a lawyer for mediation or arbitration, it will still likely cost much less than if you go to trial.

Related Reading: Steps to Divorce [With Infographic]

Why Choose Mediation Or Arbitration?

Alternative forms of dispute resolution like mediation and arbitration offer a number of advantages to going to court. If it works for you and your spouse, it may be a beneficial choice.

• Cost: Though they still cost quite a bit, both mediation and arbitration usually cost much less than a trial.
• Less Formal: There’s less formality involved in ADR, the rules are simpler, and this environment may be much less stressful for some participants. Easing the tension often allows both sides to work together and smooth out the process.
• Flexibility: Court dates frequently take months to schedule, and then you’re subject to their calendar. These approaches, on the other hand, are much more flexible and convenient. You can plan around what works best for you and generally set a date much faster.
• Speed: Court cases tend to drag on. With different regulations, mediation and arbitration don’t take as long. In most situations, lawyers spend less time preparing, which not only decreases fees, it streamlines the process.
• Confidentiality: If you hope to keep things private, this may be the way to go. Communication stays confidential, moderators keep information private, and none of the details appear on public divorce records or court documents.

Related Reading: Divorce Discovery Tools

Which Is Right For You?

Before heading down either path, it’s important to carefully weigh the options. If you and your spouse have the ability to act civil and cooperate, mediation may work.

Instead of a combative trial, it’s often shorter and less intense. Because both sides work together, it’s possible to walk away feeling better about the result, to feel like part of the process rather than having an outsider hand down a decree, like in a trial.

On the other hand, arbitration is less collaborative. Though it’s voluntary and both sides must consent to go through the process, there’s more finality.

Participants can’t back out halfway through if things go wrong, even though it’s not the court.

Because the decisions are binding, you may find more comfortable knowing you get a concrete decree one way or the other. If your spouse doesn’t abide by the decision, you have legal recourse.

Litigation isn’t always the ideal choice for divorce. It’s often stressful, expensive, and time-consuming. Fortunately, tools like mediation and arbitration exist. Many couples elect to go with one of these options, and though they may not always be the right fit, these forms of alternative dispute resolution are worth consideration.

Related Reading: Should I File For Bankruptcy Or Divorce First?