In divorce or family law matters, lots of parties are looking to resolve their case outside of court through alternative dispute resolution. Instead of being before a judge who is making the decision for them, many are looking for a different way to resolve their case.
In a previous article, we talked about the difference between collaborative law and mediation. Some individuals, however, are not sure of the difference between mediation and arbitration. They are not sure how both worked and what option might be best for them.
The reality is that in mediation, the parties meet with a neutral mediator. They might need with the neutral mediator with their respective attorneys with them. In other instances, the parties might meet the mediator alone.
The difference can vary based on jurisdiction. In some jurisdictions, the lawyers typically are present at the mediation with their client. In other jurisdictions, the lawyers might not typically be there. It can also depend on whether or not the mediation is court-ordered or voluntary.
Either way, in mediation, the mediator cannot make the parties do anything. Instead, the mediator simply facilitates a conversation in the hopes that the parties can reach an agreement. The mediator might make recommendations. But the reality is that mediation is non-binding.
On the other hand, where parties decide to arbitrate their divorce or family law matter, the proceeding works very much like a trial, except it is usually outside of court. Both parties generally have their attorneys present and they present witnesses and evidence just like a trial. At the end of the hearing, the arbitrator then renders a ruling.
Thus, with arbitration, the result is binding. Parties also generally waive the right to appeal the decision when they arbitrate their divorce or family law matter. To arbitrate, both parties generally have to agree to do so in advance.
Some parties might find mediation more appealing because the mediator cannot make them do anything they don’t mutually agree to do. On the other hand, some might find arbitration appealing because it results in finality. At the same time, some might be worried about waiving their right to appeal and putting the decision in an arbitrator’s hands.