Mediation and arbitration are methods of resolving disputes outside traditional litigation. Often used in situations like divorce, they provide an alternative to the formal legal system and having everything decided by a judge. When successful, they can be faster, less expensive, more private, and less contentious than going to court. Let’s look at what they do and how they differ.
Mediation brings in a third party to assist with conflict resolution and find a voluntary solution.
What is it?
A mediator helps both sides reach a compromise upon which all parties agree. They act as a neutral third party, listening to the concerns of everyone involved and working to find a solution that addresses those needs. Think of them like a referee who ensures everyone is heard and one party’s needs don’t become more important than the others. A mediator helps keep the conversation productive and works to find solutions fair to both parties.
Participants retain control of the process, including details like when and where to meet and who can be present. There may be joint meetings with all interested parties and private discussions between the mediator and individual parties and their counsel.
During mediation, the exchange of information is limited and voluntary. The mediator cannot require anyone to produce bank statements or other documents.
Mediation does not involve testifying. Parties may vent their emotions, express opinions, tell stories, and speak informally. Creative problem-solving is encouraged. The mediator may encourage everyone to find new ways to look at things and consider different ways of addressing problems.
In divorce mediation, if custody of the family dog is a sticking point, perhaps a visitation schedule might work, or one party may be willing to give up the dog in exchange for the coveted record collection. Solutions can come from anywhere.
Successful mediation is much faster than a court hearing and generally less expensive. If either party is unhappy with the results or the proceedings, they may end the mediation at any time.
It is important to note that the mediator’s suggestions are not binding. A mediator has no power to decide anything. They do not make rulings or final decisions. Instead, they work with the parties to create a voluntary agreement. If they negotiate terms everyone can accept, the parties may voluntarily sign an agreement that does become legally enforceable.
For that reason, it is essential to have legal counsel present during mediation. While not required, many individuals choose to involve an attorney because successful mediation leads to a binding contract. A skilled attorney can help clarify the terms of the agreement and point out things you may not have considered. Just as you likely wouldn’t want to attend a court hearing without a divorce lawyer present, you don’t want to go through mediation without a divorce mediation attorney.
If both parties agree, the outcome of mediation can remain confidential.
When mediation does not lead to an agreement, all parties retain their options to pursue other resolutions.
Arbitration gives an outside party authority to make what is usually a binding decision.
What is it?
An arbitrator is essentially a private judge. They will listen to both sides and hear evidence and concerns. While less structured and formal than an actual court setting, there will be procedures that both sides must follow in preparation for and during the arbitration meeting.
Parties may request documents and compliance is not optional. An extensive discovery process may precede the arbitration meeting, during which each side must supply the required documents or evidence.
Arbitration is more expensive than mediation but often less costly than traditional litigation.
An arbitrator bases their decision on evidence and facts. They rule based on the confines of the law, just as a family court judge would do.
Think of arbitration as a private court. Each side has an opportunity to be heard and present evidence. Once they have heard the arguments, the arbitrator decides what is fair and reasonable to both parties. In binding arbitration, this is final and there is very little room for appeal. The arbitrator is not required to provide their reasoning for the decision, though they sometimes may.
In the case of binding arbitration, all parties must abide by the final decision, even if they feel it doesn’t fully address their concerns. The verdict is enforceable by law. Some jurisdictions, including divorce courts in Utah, allow for non-binding arbitration. In that case, both sides can either accept the arbitrator’s decision and turn it into a signed agreement or reject it in favor of a trial.
Arbitration meetings are private, unlike most public trials. However, outcomes become part of the public record and therefore may be available to the public.
Mediation and arbitration bring in outside parties to help sort out the details of a legal disagreement. When successful, they can help keep down costs and reduce the time spent in court, allowing you to move on more quickly and less expensively to the next chapter of your life.