Family Law FAQ
Divorce Mediation and Arbitration
What is Divorce Mediation, And How is it Different From Arbitration?
Mediation is negotiations between disputing parties with the assistance of a trained third-party neutral. We are seeing many cases settle outside of the courthouse when each party (in the case of divorce, husband and wife) is able to voice his or her viewpoints, wishes, demands and options to the other without the aid of an attorney. Some of the issues that may be determined are asset ownership, spousal support, custody and visitation. The role of the mediator is to facilitate a neutral environment for each party to express themselves and help the parties reach a legally sound settlement that is acceptable to both husband and wife. It can be quite cost effective in comparison to the cost of trials relating to property or child custody.
Mediation may have some challenges in a divorce case. Because the parties usually do not have attorneys during mediation sessions, they may not have equal negotiation power and the weaker spouse may not have the protection an attorney could provide for his or her interests. Additionally, if either party is bitter in a divorce case (often due to infidelity) mediation may not play a proper role. Additionally, a mediator does not have the power a judge would have to compel both sides to give full disclosure on property, assets or any other issue that may be in dispute. A mediator also does not have the authority to make decisions for the parties. If a settlement is not reached, the mediator cannot impose a settlement and the parties will have to seek litigation for their dissolution.
Like mediation, arbitration is also a negotiation between two parties involving a neutral third-party. Historically, arbitration has been contractual and therefore, any decision made by the parties is contractually binding. Along these lines, the decision of the arbitrator (neutral third-party) is binding on the parties and enforceable by the courts. Additionally, in many states, an arbitration agreement may not include provisions about child custody or visitation because an arbitration agreement is a contract between the parties and cannot bind a third party such as a child. Lastly, arbitration may be voluntary or mandatory depending on the situation between the parties and the jurisdiction in which the matter takes place.
What is the difference between court-ordered mediation and private mediation?
The popularity and benefits of mediation have become well known over the years. In response, state legislatures have started adding provisions that require mediation in some marital dissolutions. In addition, more courts are beginning to require mediation in many family law matters. Mandated mediation programs may differ by state; however, many commonly require the parties to participate in mediation prior to litigation (although it can be at any time during litigation), the parties may choose the independent mediator or the court will select one for them and the negotiations may be non-binding or binding arbitration.
Alternatively, private mediations are initiated by the parties and not the court. The parties may choose to try mediation before litigation and hire a mediator from an independent firm. Members of the court are not involved in a private mediation. However, if an agreement is made by the parties and the parties do not abide by the agreement, they may ask the court to aid in enforcing the agreement. Also, in some jurisdictions, the court may be required to approve private mediation agreements.
