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Divorce Mediation and Arbitration: What is the Difference?

Michael Tierney
September 15, 2022

The legal world is full of similar terms and concepts that seem identical but are actually completely different. Some terms are notably easier to distinguish but can still prove challenging to comprehend without firsthand experience. Even in legal scenarios where the general concept is common knowledge, specific situations can arise that alter how the case proceeds. This is not made easier because the legal world covers many potential issues and claims.

While you might have some insight into the different legal terms surrounding certain cases, the nature of the case also brings several new terms with which you might not be familiar. One of the most complex forms of civil law, for example, is divorce.

If you are going through divorce proceedings, you have likely heard many legal terms being thrown about with little explanation. Ordinarily, your attorney would explain the exact nature of these terms, but some inept attorneys might forgo this step.

Solution Two of the most important terms that could come up during your divorce are "mediation" and "arbitration." Despite the importance of these terms, they have different meanings and implications for your case.

Understanding these differences can help prepare you for negotiations, conversations, or legal filings, especially since arbitration and mediation can completely change how your divorce is negotiated.

What is Divorce Arbitration?

We first need to clarify that arbitration is not a process unique to divorce and can apply to other civil suits. Divorce is merely one of the civil matters to which arbitration can be applied. As for what arbitration is, the concept is built on the fact that every divorce is meant to reach an equitable resolution that does not favor one party over the other.

Solution Arbitration involves settling disputes such as divorce outside the courtroom in a less formal setting. Arbitration is slowly gaining popularity over a traditional courtroom process due to its benefits over litigation. It is faster and less expensive than litigating your divorce proceedings through the court system.

The way arbitration functions is that you and your spouse must hire a single arbitrator or a panel of 3 arbitrators, depending on your needs and the state laws. The arbitrator presiding over your case will then serve as an impartial 3rd party that listens to both sides and reviews evidence before making a final decision.

Arbitrators can be found through agencies such as the American Arbitration Association, JAMS, or the National Arbitration Forum to find well-established representatives. However, you can also seek an independent arbitrator who suits your philosophical and financial needs. In some cases, going through an attorney will allow you to locate an arbitrator through them.

A Divorce Arbitration

Once you have retained an arbitrator, you question what kind of arbitration you want. Two major types of arbitration determine how effective the process is: binding and non-binding. Depending on the form your arbitration takes, you might waive the ability to appeal the decision made by your arbitrator.

  • Binding Arbitration: A binding arbitration makes the decision of the arbitrator final and indisputable. The only way you can overturn the decision of a binding arbitration is by presenting it to a judge so they can overturn the decision. A judge will only overturn the decision if one or more parties is guilty of fraud or if misuse of power occurred during the arbitration.
  • Non-Binding Arbitration: A non-binding arbitration, as you might have guessed, is the opposite of a binding arbitration. While the arbitrator still decides based on the presented evidence, you and your spouse have the right to refuse this decision in favor of litigation. If you wait too long to reject the decision or if you both initially agree to the arbitration terms, the result might become binding.

Arbitration procedures help you and your spouse reach a reasonable arrangement without seeing the inside of a courtroom. The process is only as effective as the arbitrator you retain, and both you and your spouse must agree on the arbitrator. This is why going through an agency is considered the most responsible choice. Once the arbitration begins, you will present all the evidence you would have presented in a litigated divorce proceeding to the arbitrator so they can make an informed decision. That said, the rules of evidence in arbitration are far simpler than those in a litigated case.

The discovery process used in litigated cases, including depositions and interrogatories for gathering information, is completely absent in an arbitration. Instead, important information is presented to the arbitrator over the phone so that you can send copies of documents and a list of witnesses to the arbitrator for review. While arbitration has its advantages, it is not the only course of action you can take to avoid litigation.

What is Divorce Mediation?

Divorce mediation shares a few similarities to divorce arbitration, making it a potential alternative to presenting the divorce in court. The biggest similarity is that divorce mediation requires a neutral 3rd party to oversee the negotiations.

Solution This mediator serves similarly to an arbitrator, except the mediator is not responsible for making any decisions during the mediation process. Rather, the mediator exists to help keep the negotiation on-topic and prevent excess conflict from spilling into the conversation. More accurately, a mediator is there to help you and your spouse reach common ground on hot-button topics common to divorce negotiations.

A mediator will try to streamline the discussions surrounding:

  • Child Custody
  • Child Support
  • Property Division

These are some of the most sensitive topics in divorce and can trigger huge arguments that devolve quickly. The mediator offers potential compromises and works to prevent any hostility that might interfere with a reasonable settlement.

Divorce Mediation Session

The first step to mediation, like arbitration, is finding a qualified mediator to oversee the negotiations.

  • Like arbitrators, a mediator can be found through online agencies and may be available through your local courthouse. Mediators can even be psychology professionals capable of providing more in-depth tools and techniques for levelheaded negotiation. Once you have selected a mediator, you and your spouse will have to meet with them to complete some preliminary paperwork and conversation.
  • Another similarity between mediation and arbitration is that they are far less formal than a litigated case. However, mediation has the added benefit of not necessarily involving an in-person meeting with the mediator. Mediation can occur on a virtual platform so you and your spouse can arrange a meeting that fits your respective schedules. This marks the end of the similarities between mediation and arbitration and the beginning of the significant differences.
  • The most important difference between mediation and arbitration is that mediation is not binding unless you sign the agreement drafted by your mediator after the negotiations are complete. Ultimately, there is no guarantee or requirement for mediation to resolve the negotiations between you and your spouse. It is meant to serve as a potential alternative that allows you to try and reach an agreement without court oversight. If mediation yields no compromise between you and your spouse, the case can be deferred to the court system instead.
  • Because of the nature of mediation, you must be willing to compromise and consider your spouse's stance on the negotiation topics. Mediation is meant to serve as a civil and more personal negotiation for the division of assets. Mediation requires you to let your spouse explain their side of the situation before retorting and listening to the mediator when they try to keep you on track. Because mediation is not enforceable without the consent of both parties, it is not always a successful tool for negotiating the terms of a divorce.

While mediation can keep the divorce from being litigated, it is important to weigh the pros and cons of mediation and arbitration over litigation.

Pros and Cons of Arbitration

Arbitration, like most things in life, is not a perfect tool. While arbitration has advantages, it has disadvantages that affect its viability as a method for resolving your divorce. This is not to say that arbitration is a poor choice, but that weighing the benefits it offers over litigation with its disadvantages is important.

Spouses Speaking With an Arbitrator

We will start by listing the advantages arbitration has over litigation:

  • Expense: While arbitration is by no means an inexpensive venture, it is far cheaper than the costs of litigating your divorce. Arbitrators can average a cost of $3,000.00 to $4,000.00 a day for their services. This might seem costly, but it is much less expensive than paying an attorney for their services.
  • Speed: Litigation is a time-consuming matter that can take over a year to yield a resolution from the judge. Divorce cases can be even more complicated as more arguments and evidence is presented about you and your spouse. You can have your case finalized through an arbitrator in less than a year.
  • Privacy: Another advantage of arbitration not available for litigated divorce claims is privacy. The arbitration is conducted privately between you, your spouse, and the arbitrator(s) you hire. The resolution enforced by the arbitrator is also kept private if you so choose.

The disadvantages of arbitration are:

  • All or Nothing Result: The biggest disadvantage of arbitration is that the arbitrator's decision is final if the arbitration is binding. This immutability can often worry those who feel the arbitration might not be fair or favorable to their situation.
  • Lack of Transparency: The privacy associated with arbitration has become a double-edged sword. Since the results can be sealed and protected from becoming general knowledge, the risk of a biased and unfair decision has become more likely. It makes the lack of transparency a hazard to honest arbitration.

Arbitration might have its share of advantages and disadvantages, but it is not the only legal process that has this issue. Mediation has an equal amount of pros and cons.

Pros and Cons of Mediation

Mediation might be fairly different from arbitration, but these differences do not give mediation immunity from potential issues. Like arbitration, mediation has advantages and disadvantages that can help you determine which is best for you if you prefer to avoid litigation.

Spouses Speaking to a Divorce Mediator

Mediation's major advantages include:

  • Expense: Like arbitration, mediation is far less expensive than litigation since the main cost is hiring a mediator.
  • Control: When mediating, you and your spouse retain full control over the negotiations and settlement of the divorce. This freedom is granted due to the mediator being an impartial advisor rather than the authority presiding over the negotiations.
  • Communication: Mediation offers a slight benefit like no other divorce proceeding. It offers an opportunity to revitalize the communication in your marriage and understand each other's point of view. This makes mediation slightly more conducive to reconciliation and eliminating the need for divorce.

While the advantages offered by mediation are appealing, they are not always able to outweigh the disadvantages involved:

  • Domestic Abuse: The biggest and most important disadvantage of mediation is that it requires patience, compromise, and a level head. Mediation is doomed to fail if your spouse is abusive or controlling since they will be unwilling to hear any compromise since it takes their control away.
  • Success: The next major issue with mediation is the success rate. Since mediators cannot make a final decision and only provide guidance, negotiations can break down if there is too much hostility.

Mediation is only one tool for divorce that helps you avoid litigation. In some cases, litigation is preferable, given the disadvantages mediation brings. Ultimately, deciding to mediate is about what you think you can accomplish by sitting down with your spouse.

Learn the Law

We know that divorce is probably the last thing you want to deal with and that the prospect of divorce can be terrifying. If part of that fear stems from litigation, the alternatives available can work. While there is no "right choice" between mediation and arbitration, they can be preferable to litigation if money is an issue or if going before a courtroom is too daunting.

Person Learning Divorce Law

Mediation can help spouses with an amicable or amenable relationship, while arbitration can give you a definitive answer without a judge's oversight. We hope this information is helpful and wish you the best of luck in whatever comes next.

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Written By:
Michael Tierney

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