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In the United States, only about 5% or fewer of divorce cases will ultimately go to a hearing. Most divorcing couples will find some way to settle their case with an agreement. Two of the most common ways to settle divorce disputes outside of court are mediation and arbitration.
Divorce mediation and divorce arbitration are both forms of alternative dispute resolution that help couples resolve legal issues without going through a full divorce trial.
The key difference:
Understanding the differences between divorce mediation and arbitration can help you determine which process may work best for your situation. A divorce mediator may help you get to the end of this process more quickly.
It is difficult to sit down to resolve difficulties and differences of opinion, especially when emotions are running high. It is human instinct to want to ensure the best possible situation for yourself. However, the other spouse is trying to do the same thing for themselves. Thus, some intervention may be required to try to get both spouses on the same page.
Couples may try alternative dispute resolution because having a neutral third party involved makes discussions more productive and less adversarial. Mediation and arbitration can help couples:
Remember that going to a full divorce trial is expensive and can have a large emotional toll on everyone involved. For that reason, courts and family law attorneys frequently encourage couples to explore settlement options first.
Divorce mediation is a voluntary and non-binding process where a mediator helps spouses negotiate agreements on divorce issues. These issues may include:
The divorce mediator acts as a neutral facilitator during discussions between spouses and is usually a family law attorney themselves. The mediator does not act as a judge and cannot impose decisions. Instead, the mediator helps both parties communicate and work toward mutually acceptable solutions.
If the mediator gives any recommendation, it is because this is what their knowledge and experience tell them. Nonetheless, each spouse would be free to disregard what the mediator says since it is not binding. There is nothing that would stop someone from walking away from mediation or hiring a new mediator if they feel the process is not moving forward.
In the end, the divorce mediator is there to assist both ex-spouses in trying to reach an amicable solution to the major issues. The mediator cannot give legal advice, nor can they make any binding decision. They are the facilitator of negotiations.
Many couples choose mediation because it offers several advantages compared to litigation:
For couples who can communicate effectively (even with assistance), mediation can be an efficient path to finalizing a divorce settlement.
Divorce arbitration is a more structured legal process in which a neutral arbitrator hears both sides of a dispute and issues a decision. In many ways, arbitration resembles a private court proceeding.
Like mediation, both parties and their divorce attorney would need to agree ahead of time on the arbitrator. Once they do that, they give the arbitrator broad powers. Instead of acting to facilitate agreement like a mediator would, an arbitrator will hear a case more like a judge would.
The level of formality of arbitration depends on the parties’ wishes. They have the right to specify the type of proceeding that will happen. Many people opt for an arbitrator who has the power to make a binding decision that each of the parties agrees to follow in advance of the proceeding.
Each spouse then presents their case to the arbitrator, often with the assistance of their divorce attorney, and hopes they rule in their favor. The arbitrator then reviews the evidence and legal arguments before issuing a ruling.
The arbitrator’s decision is final and often times there is no right to appeal. It is often binding on the parties, and they cannot go somewhere else to appeal it if they do not like it, unless they have specifically agreed on provisions to appeal.
Arbitration is often used when couples cannot resolve certain issues through mediation but still want to avoid a full trial in court. For example:
In these situations, arbitration can help finalize unresolved issues and determine a final legal decision without extended litigation.
Arbitration can be a part of the progression of the process when divorcing spouses are trying to resolve the dispute without a trial. For example, if the parties try mediation and it is unsuccessful, arbitration could be the next step that they pursue. Alternatively, if they can come to an agreement on every issue except for one or two, they may send those parts of the case to arbitration.
A family lawyer may advise you that you should start with processes that are more informal first before moving through the progression of options available to you. Theoretically, this would start with mediation. The less formality in a divorce, the better it bodes for the two parties’ long-term relationship.
If mediation was not successful, then you could work to move to more formal avenues to try to resolve the dispute. Arbitration could work to resolve your divorce if you have an issue or two on which you did not agree. It would be a cheaper option than a divorce trial with less hostility.
Before you opt for a divorce trial, work with your family law attorney to explore all possible ways to settle your case. Your divorce attorney would likely counsel you that you should always be open to finding a means to settle your case because the trial should be the last resort when all else fails.
Based on the differences between mediation and arbitration, you may be wondering what would work best for you. An experienced New Jersey family law attorney can help you evaluate whether mediation, arbitration, or litigation is best suited to your situation.
To learn more about how mediation and arbitration can help your case, contact Jeralyn Lawrence, a family lawyer at Lawrence Law. We have offices in Watchung and Red Bank, New Jersey. Schedule a consultation with our divorce lawyers today by calling (908) 645-1000.
Helpful Resources
Want a Peaceful Parting? Mediation Can Lead to Lasting Resolutions
The Surprising Benefits of Choosing Mediation Over Litigation
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