Mediation or Arbitration -- Can Your Family Law Issues Be Resolved without Seeking Help from a Judge?

By Jan L. Bernstein, Esq. and Erin E. Rantas, Esq.

Traditional litigation through the court system continues to be the best, most effective, and most efficient means for resolving family law disputes for some persons. However, for those who have concerns about whether a traditional resolution is right for them, mediation and arbitration offer two different avenues through which a variety of family law issues may be resolved outside of the court system. Some choose mediation or arbitration because they believe the process will be more private and/or less expensive than traditional litigation. Still others are confident that mediation or arbitration will produce a settlement or conclusion more quickly than one will be reached in the court system. But is mediation or arbitration right for you? Are the issues in your case ones which should be resolved by mediation or arbitration? Are there attorneys in your area specialized in the practice of mediation or arbitration and are those attorneys equipped to handle the complicated family law issues in your case? Before deciding the best route for you, be sure that you fully understand the basic differences between mediation and arbitration.

Mediation: An informal, voluntary, non-binding process where the parties submit their positions to a neutral individual – the mediator – who facilitates communication between the parties. The mediator will set the tone and will control the agenda of each meeting, but he/she will not impose terms of settlement or make any decisions for the parties. The mediator will prepare a Memorandum of Understanding (“MOU”) – a document which will incorporate all of the settlement terms agreed upon between the parties during mediation. Parties may choose to attend mediation with or without an attorney. However, each party will be encouraged to have an attorney review the MOU and translate it into a Property Settlement Agreement.   

Arbitration: A more formal process where each party presents his/her argument during a hearing before the arbitrator(s). At the conclusion of the hearing, the arbitrator(s) will render his/her decision as to how the issues presented should be resolved. Arbitration may be binding or non-binding. Binding arbitration means that the decision reached by the arbitrator as to each of the issues presented must be followed by the parties. Non-binding arbitration means that one or both of the parties may decide not to follow one or all of the decisions made by the arbitrator(s). In these cases, one or both parties may elect his/her limited right to appeal the decision of the arbitrator(s) to a New Jersey Court. Unless the parties reach an agreement to deviate from the law in regard to his/her limited right to appeal, the decision of the arbitrator(s) will only be overturned in rare circumstances, such as those involving fraud, wrongdoing, or the violation of public policy.      

Next, thoughtfully consider the type and complexity of issues you need to  resolve. In most, if not all cases, it is wise to retain an attorney to assist you in identifying the issues to be resolved and their level of complexity. For example, your issues may involve the custody or relocation of minor children; the division of significant assets; or the payment of support. You or your spouse/partner may have a business interest that needs to be valued and divided or perhaps one of you is the beneficiary of an inheritance or a trust. The more complex your issues, the more likely it is that your attorney may recommend the retention of an expert accountant, financial planner, appraiser, or child psychologist. As with traditional litigation, any one of these professionals may be retained to offer an opinion on your behalf alone or on behalf of both you and your spouse/partner. 

Finally, if mediation or arbitration is the right route for you, be sure to research and select a mediator or arbitrator experienced in the area of family law to handle your matter. Not all mediators and arbitrators offer the same level of experience, knowledge of family law, and flexible approach to the practice of mediation/arbitration.