Divorce Mediation and Arbitration Explained

The Differences Between Divorce Mediation and Arbitration

In the United States, only about 5% or less of divorce cases will ultimately go to a hearing. Most divorcing couples will find some way to settle their case with an agreement. Mediation and arbitration are two ways to resolve a divorce, and they are different in nature. A divorce mediator may help you get to the end of this process quicker.

Couples Often Need Some Extra Help to Settle Their Case

It is difficult to sit down to resolve difficulties and differences of opinion, especially when emotions are running high. People find that they need some extra help before they actually end up in court. Remember that going to a full divorce trial is expensive and can have a large emotional toll on everyone involved.

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.

Hiring a Divorce Mediator  Is an Initial Step in Dispute Resolution

One of the first things that people may do to resolve their differences is try to go to mediation. This is one of the initial and less complicated steps to take. If mediation does not work, then divorcing spouses may opt for more intense intervention. These measures can include arbitration.

The first thing to know about divorce mediation is that there is no obligation whatsoever for couples to engage in the process prior to filing for divorce. However, once you file for divorce, custody and parenting time mediation, as well as economic mediation, are mandatory.

Divorce mediation is a completely non-binding process. The mediator acts as a facilitator between the two parties. They can point out when one party is being unreasonable in their demands and can explain the way that they think that the process would play out in court. In fact, the mediator will not issue any ruling in your divorce. They may make suggestions, without giving legal advice, but there is nothing binding about them whatsoever. Neither ex-spouse is bound to follow what the mediator says.

The Divorce Mediator Tries to Help But Does Not Order

Of course, each spouse should pay close attention to the mediator because they are an experienced professional, and they are there to help divorcing couples resolve their issues. The mediator is usually a family law attorney themselves. If the mediator gives any recommendation, it is because this is what their knowledge and experience tells them. Nonetheless, each spouse would be free to disregard what the mediator says since it is not binding. While they may be best off listening to the opinion of the mediator, there is nothing that would stop someone from walking away from mediation or hiring a new mediator.

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.

Arbitration Is a More Formal and Legal Process

While arbitration is another way of solving a divorce, it is not like mediation. In a mediation, you are talking to the other spouse with the help of a mediator. In an arbitration, you are making your case to the arbitrator, hoping that they rule in your favor. Essentially, one is a facilitated negotiation while the other is a court-type procedure. The mediator may try to innovate and shepherd the parties through the dispute. An arbitrator would not have that room.

Arbitration can be a much more formal process than mediation. It is similar to court, but you have selected your own judge. An arbitration proceeding may look and feel very similar to a divorce trial. However, it is a way to resolve the case without the full expense and hostility of a divorce trial conducted in court. The process is still judicial in nature.

The Arbitrator Will Issue a Ruling in the Case

The major difference between arbitration and mediation lies in the power of the arbitrator. Whereas the role of the mediator is more limited, the arbitrator does have the power to issue their own ruling in the case, deciding a particular issue if that is what a divorcing couple decides ahead of time. 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.

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.

Instead of acting to facilitate agreement like a mediator would, an arbitrator will hear a case more like a judge would. Each spouse would have the ability to make their own case to the arbitrator. They present their case like they would in court with the help of a divorce lawyer. Their case involves evidence and legal arguments for the arbitrator to consider.

Once each party has presented their case, the arbitrator will issue a decision. The parties may still have room to negotiate some issues after that, but the arbitrator’s decision is final. 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 for provisions to appeal.

Arbitration Usually Follows Working With a Divorce Mediator

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 are able to come to an agreement on every issue except for one or two, they may send those parts of the case to arbitration.

Based on the differences between mediation and arbitration, you may be wondering what would work best for you. 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 there is, 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.

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.