Mediation and Arbitration in Family Law

Every separating couple with children should consider mediation before first resorting to the age-old option of going before a judge, especially one who has little experience with your family. Nonetheless, this judge will be making decisions that have little in common with what you desire to happen and which may be both contentious and unfair to one or both parties, including the children. Mediation provides a necessary but effective format for a difficult situation and allows reasonable conversations between adults that are important to the needs of each other and the best interests of their children.

Mediation is a method of resolving issues involving divorce, including division of financial assets, personal and real property, and custody issues between couples with children. The parties are not forced to submit to any unacceptable resolution, and agreements or decisions are (and should be) completely voluntary. Although in many states, mediation is mandatory, the decisions are made only between the two opposing parties without a third party actually negotiating particular issues.

In general, voluntary mediation can be completed within a few days and with few meetings once it is scheduled. Agreements are usually reached much faster than in the court process and immediate or urgent needs (such as support and custody) may be resolved quickly, and temporary arrangements developed that is satisfactory to both parties until final agreements are made.

A mediator, (which may or may not be an attorney), acts as a neutral third party and helps the couple reach an agreement involving custody of their children, spousal or child support, and division of marital property through mediation and in a fair, balanced, and reasonable manner. A mediator is not allowed to make any decisions, negotiate settlements or to give any legal advisory counsel, nor can he or she make a binding legal decision or be an advocate for either side.

The benefit of mediation is that the couple can make their own decisions on what type of custody arrangements they want and decide on sole or joint legal and physical custody, a visitation, holiday, and summer vacation schedule that they have agreed on, the amount of child support to be paid, when and by whom. The parents can also agree on how far away they may live from each other, decide what travel arrangements are necessary to deliver the children between the parents, and the division of real and personal property, all of which is acceptable to each party.

Arbitration is another method of resolving disputes outside of a formal court hearing. An arbitrator does the same job that a judge would normally do in court; however, the arbitration process is less formal, thus allowing the arbitrator to be more flexible, and able to make certain decisions a judge cannot make (if both parties agree), yet the process is more formal than mediation. An arbitration hearing can usually be scheduled quickly and normally within a few weeks.

However, if a couple has gone through mediation, why would arbitration be necessary?

For example, if the couple is able to make a decision on all matters with the exception of the marital property, they may elect to have their case heard by an arbitrator on that matter alone. Both parties, with or without an attorney to represent them, refer their disputes to the neutral third party arbitrator (and who may be a judge, attorney, or qualified non-attorney) who reviews the evidence, listens to both sides, and then makes a formal and legal decision that is typically legally binding on both parties - regardless if both are in agreement. Nevertheless, arbitration may settle or resolve a dispute that seems to have reached an impasse and normally in an equitable manner.

Mediation and arbitration are both considered confidential with the information kept private and out of the public eye. It is effective because settlements are based on voluntary agreements that satisfy both sides and creating a situation where both parents are more willing to adhere to the agreements they made together. Mediation is also more cost effective in the end for the parties involved, with results that are more satisfactory, and with mutual decisions which they can comfortably live with.

Mediation also helps to provide a positive working relationship without the anger and recriminations often found between divorcing parents, even those who are truly interested in what is best for their children.

Sources:
What is Family Mediation?
Mediation
Arbitration - FindLaw