Disagreements amongst family members can be emotionally sensitive. To enhance the chance of a peaceful resolution, some family law or divorce law matters are resolved outside court through alternative methods. Instead of the case being taken to court where a judge will make the decision, they are solved through either mediation or arbitration. In some cases these alternative dispute resolution methods are ordered by a court. In others, the parties may agree to forego litigation in court to save money or time.
It is important to understand the differences between arbitration and mediation. Following is a brief summary of those differences:
Mediation involves bringing the parties together for negotiations in order to settle the dispute. The negotiations are guided by an independent party who acts as a mediator. The mediator helps the parties involved to identify the key issues in their dispute, and the options available to resolve the matter.
Mediations can either be ordered or required by the court, or decided on by the parties voluntarily. The parties are often in separate rooms and speak to the mediator one at a time. The mediator listens to what each party has to say, and presents it to the other party. They may also provide alternative solutions that the parties may not have considered.
Mediation is a cost-effective alternative to litigation or arbitration. It preserves confidentiality and often results in a creative resolution. Mediation allows the parties to negotiate while ensuring that a neutral third party is there to both coax a resolution along and let the parties know when they are being unreasonable. It often results in a win/win outcome. The process can also be concluded in a short time.
This form of dispute resolution also involves an independent party; an arbitrator. The arbitrator is somewhat like a judge at trial in that he or she rules on the process prior to and during the hearing and makes the final decision with regard to the issues being discussed. The arbitrator’s decision is binding.
Arbitration is similar to having a case taken to court. The proceedings are similar to those of a trial, but less formal. The difference is that they occur outside the court. Attorneys are present to represent their clients, and witnesses may be called upon to give testimony. Evidence may also be presented to strengthen the case. At the end of the hearing, the arbitrator makes a ruling that is legally binding for the parties involved.
Unlike with a court case, both parties have to agree on the choice of arbitrator – and in some cases, you can have three arbitrators on a panel. If the parties can’t agree, they will be required to choose an independent body or person to appoint an arbitrator. Arbitration is more formal than mediation, but far less formal than a trial. It can also be lengthier and therefore more expensive. It, however, offers more flexibility than the regular litigation process, and is also more cost-efficient.