For some divorcing couples, traditional litigation through the court system may be the best, most effective, and most efficient means for resolving family law disputes. However, for those who want to avoid the costs and headaches of divorce court, mediation and arbitration offer two avenues for resolving family law issues outside of the court system.
Some choose mediation or arbitration because they believe the process will be more private 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? Before deciding the best route for you, be sure that you fully understand the differences between mediation and arbitration.
Mediation
Divorce mediation is an informal, voluntary, non-binding process where the parties meet with a neutral individual – the mediator – who facilitates communication between the spouses about the issues in their divorce. The mediator will set the tone and will control the agenda of each meeting, but will not impose terms of settlement or make any decisions. If the spouses reach a settlement, the mediator will prepare a Memorandum of Understanding (“MOU”) – a document incorporating all of the settlement terms agreed upon during mediation. Spouses 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 Marital Settlement Agreement.
(To learn more, see Divorce Mediation).
Arbitration
Arbitration is a somewhat more formal process where the spouses choose a jointly agreed arbitrator and presents their arguments during a hearing before the arbitrator. At the conclusion of the hearing, the arbitrator will render a decision resolving the issues presented. Arbitration may be binding or non-binding, but binding arbitration is much more common. Binding arbitration means that the arbitrator’s decision must be followed by the parties; there’s no right to appeal. 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, and instead go back to the court and appeal the decision.
Mediation is a good option if you value the relationship with your spouse, and especially if you are raising children together, because it supports productive communication between the two of you. However, if your communication has broken down and you don’t think it can be improved or that there’s a chance you’ll be able to make decisions together, then arbitration may be a better option for you. (If you’re somewhere in between, consider collaborative divorce.)
Finally, if you decide that mediation or arbitration is the right route for you, be sure to find a mediator or arbitrator experienced in the area of family law to handle your matter.
