Divorce Mediation v. Arbitration: What You Must Know
No two families are the same. Similarly, the best way to solve a dispute for one family may not be viable or realistic for another. If you are contemplating divorce or wondering what the best way is to resolve a post-divorce dispute involving a divorce or family law matter (child support, spousal maintenance, or equitable distribution) it is important to understand that you have alternatives to the traditional litigation track offered through the court system.
For many families, alternative dispute resolution (ADR), such as mediation or arbitration, is more attractive for resolving issues than relying on the court system or litigation because they offer more affordable and efficient mechanisms for dispute resolution. These alternative dispute resolution processes are especially worth considering if you have children since you and your Ex will still be dealing with one another post-divorce or post-separation. It is better to learn early on how to communicate effectively and respectfully with your coparent rather than running to court for every issue involving your children. It may also preserve your sanity and wallet down the road.
What is the Difference Between Traditional Litigation and Alternative Dispute Resolution?
Going to court involves a stranger deciding your family’s future. It can be expensive, time-consuming, and emotionally draining. You will also lack control over the process. If you are unable to reach an agreement with the other side, a trial may be necessary. This involves evidence being presented and the parties’ testimonies being taken. Both parties will also be subject to cross-examination. Once a decision is rendered by a judge, referee, or support magistrate in court, it is appealable by right. This means that you can appeal the decision issued by the court.
What are the Similarities Between Mediation and Arbitration?
Both processes are forms of alternative dispute resolution and are less formal than court. They are usually quicker and more cost-effective. Both the mediation and arbitration processes are private. Discovery is limited, there are no depositions, and there is no public divorce record that can one day be searchable on Google by strangers.
What are the Major Differences Between Mediation and Arbitration?
Let’s begin by understanding what mediation is — especially if you are thinking about divorce.
The goal of mediation is for a neutral party to help facilitate the parties in entering a mutually desired agreement. It is a voluntary process. Mediators can help underscore the other party’s perspectives, emotions, thoughts, and concerns during the mediation process to facilitate a resolution. But at no time will a mediator force a solution upon you or privately offer their divorce advice. Mediators do not make decisions. Rather, mediators facilitate the negotiation process so that both parties feel their respective positions are heard.
Mediation aims to establish a collaborative process where the parties can negotiate to ensure a successful resolution of issues. Mediation is usually faster and cheaper than arbitration, but again, this depends on the parties’ circumstances, personalities, and willingness to resolve disputes.
It’s also important to know that, typically, the outcome of divorce mediation is not appealable because it involves both parties signing the agreement, which is treated like a contract.
If you end up disagreeing with the contract you’ve signed, it is best to seek the advice of a lawyer for alternative dispute options. Read here on how to find a good divorce attorney.
- Who selects the mediator?
Together, the parties select the mediator. - What qualifications must the mediator have?
The mediator may be an attorney, but it is not required. However, you may wish to consider selecting an attorney as your mediator, especially one who possesses specialized legal knowledge in the subject matter of your dispute.
What is Arbitration?
On the other hand, arbitration is conducted by an arbitrator who is a neutral third party, like a lawyer or a retired judge. The arbitrator is chosen by both spouses. The arbitrator’s job is to resolve disputes outside of court and make a final and binding decision. To do this, an arbitrator will review evidence and consider testimonies from both sides before issuing a decision.
Arbitration may have some courtroom-like aspects, but it is still less formal than court. And while arbitration decisions are appealable, they can be appealed only under limited circumstances.
When can an arbitration decision be appealed?
The basis to appeal an arbitrator’s decision is extremely narrow. It may be appealed in limited circumstances, such as when the arbitration was subject to fraud, corruption, duress, or bias. A decision of an arbitrator may also be appealed when the arbitrator does not listen to all of the testimony or consider all of the evidence. The governing arbitration body, usually the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Services (JAMS), sets specific guidelines for when an award can be appealed, how to appeal, and the timelines for the appeal.
If you engage in arbitration, be certain to carefully review all of the rules established by the arbitral body before proceeding with the arbitration.
What qualifications must the arbitrator have?
Check your state’s guidelines. Some states require arbitrators to be attorneys, and other states do not. Most arbitrators are subject-area experts with a solid track record of professional experience. Some states also require additional certifications and extensive training.
Who selects the arbitrator?
The parties mutually select the arbitrator, although a specific organization may be required to conduct the arbitration based on whether a prior agreement or contract was signed by the parties. A prior agreement usually happens in the context of commercial or employment disputes. It is a good idea to do your homework. Research the arbitrator’s education, professional experience, and even who the arbitrator sided with in prior disputes.
Some arbitrators may have a track record of favoring one party over the other. You want to object to any arbitrator who may be biased right away.
If you wonder what else you must know as you think about divorce or embark upon its journey, you will want to review SAS for Women’s comprehensive divorce checklist.
When Should You Consider Arbitration Over Litigation?
It is commonly believed that certain types of subject matters favor arbitration rather than litigation. For example, consumers in product liability disputes may do better in arbitration rather than in court.
While arbitration is more common in commercial or employment disputes than family matters, arbitration is still a viable option to consider within the family context.
- Why is arbitration more common in commercial or employment disputes than family law matters?
Most of the time (but not always), parties are subjected to arbitration because of a prior binding agreement or contract specifying that any potential disputes will be resolved via arbitration. However, as the family law process through the courts continues to be time-consuming, uncertain, stressful, and expensive, arbitration will surely grow as a potential option for dispute resolution and as an alternative option to mediation.
NOTES
Meredith L. Singer is an experienced NYC family law attorney and a zealous advocate for her clients. She strives to keep legal representation affordable and accessible. If you are a resident of the New York City area, you are invited to schedule a meaningful consultation with her to learn more. Visit Meredith’s website at: www.meredithsingerlaw.com.
Since 2012, SAS for Women has been entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward.
SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. All of it is delivered discreetly to your inbox.
Join our tribe and stay connected.
*SAS continues to support same-sex and nonbinary marriage. In this article, however, we refer to your spouse as husband/he/him.
