Mediation vs. arbitration: choosing the best alternative dispute resolution for your divorce.

2019-11-14-15

Like so many couples these days, you're probably shying away from settling your divorce via litigation. Maybe you don't have the heart for a public process, the finances for a court battle, or you're still hopeful that you can end things reasonably amicably. Whatever the reason, you're considering alternative methods of conflict resolution.

But there's a lot to think about. Because however much you want a peaceful resolution, there are a ton of important factors at play, such as fair division of finances and property, alimony, child custody and support. With so much at stake it's vital that you choose the right method for you and your family.

Arbitration vs. Mediation.

Arbitration and mediation are probably already on your radar as a potential alternatives but if you've never experienced either it may be hard to decide which method will be most appropriate. So let's look at an overview of how each one works.

Arbitration.

In terms of both flexibility and formality, arbitration lies somewhere between litigation and mediation. To begin, the couple will need to choose an arbitrator to oversee the process and then work with separate counsel to prepare for a hearing. During the hearing each party must present their argument, supported when necessary by documents and witnesses. In this respect arbitration isn't a million miles away from the litigation process but unlike litigation, arbitration is confidential.

Once the arbitrator has heard both sides, they will consider the arguments within the frame of the law and present a final decision. Hearings can often be completed fairly quickly, sometimes in as little as a week. It's worth noting that the arbitrator's decision is final, although there may be scope for additional review by family court if something goes awry..

Mediation.

In comparison to litigation or even arbitration, mediation offers a flexible approach for couples who are willing and able to communicate openly and approach the divorce process in a more conciliatory way. And like arbitration it is a confidential process so couples needn't fear discussing more sensitive issues.

The couple will engage a mediator to supervise their negotiations. They may also choose to bring in individual counsel to help them through the process, particularly where complex legal or financial issues are involved, or one or both parties lack confidence in negotiating.

Unlike an arbitrator, a mediator will not issue a final result; rather it is their job to guide the couple to their own, mutually beneficial solutions. Once the parties have reached an agreement, the mediator can draft a Memorandum of Understanding which can then be finalized by an independent attorney as a formal written agreement.

While both options offer a faster, more flexible, and less expensive alternative to litigation, most couples will find that one or the other is more suitable for their particular situation. Before deciding which one is right for you, it's worth considering how much flexibility you want from your divorce process, how willing you are to work with your spouse to achieve a fair outcome, and whether you'd like to retain control over any decisions about your future. If you're still unsure, try seeking advice from your own attorney, who can look at your case in more detail and guide you to the best option for you and your partner.

If you'd like to find out more about how the mediation process works, I'd be happy to guide you through it — get in touch today. 

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Friday, 06 December 2019