People often interchange or confuse mediation and arbitration. Both are methods of resolving disputes, outside of the courtroom.
Mediation is a facilitated negotiation, which will only result in the resolution of a dispute if the parties are able to reach a consensus, with the assistance of a trained mediator. If the parties are not able to reach a consensus, a resolution will never be imposed by the mediator. While a mediator will not impose a settlement, the mediator is a trained professional that will host mediation sessions and support the parties through the negotiation process.
Arbitration, on the other hand, involves placing the decision making authority in the hands of a trained arbitrator. Like a court action, there will be a final decision at the end of arbitration, and the parties are bound by the decision of the arbitrator, subject to rights of appeal that the parties have agreed upon in advance.
There are many benefits to using an alternative to Court litigation to resolve disputes. These include:
- The parties to the dispute can choose the method of dispute resolution that is most appropriate to their case. Family law disputes are often referred to mediation because it is important that the parties maintain a working relationship after their dispute is resolved.
- The timing of the process is controlled by the parties, rather than the availability of limited court resources.
- The costs of mediation and arbitration are often less than an ongoing litigation fees.
- The process is private and confidential. Because mediation is confidential, parties are often more willing to explore settlement options thereby allowing the mediator to assist with generating proposals and solutions. With limited exceptions, family court proceedings are open to the public.
- The parties choose their own mediator or arbitrator. You do not choose the Judge who will decide your case in Court. There are various options of qualified mediators and arbitrators with different backgrounds and expertise which can help you with your specific situation.
- You maintain control over the process. Unlike the court setting, a mediator has the option of creating a process that will be customized to your family’s specific needs. You may choose to hold mediation sessions jointly in the same room, or if preferred, shuttle mediation (in separate rooms) might be part of your custom mediation process.
- You are also able to create plans that are specific to your family’s needs, essentially maintaining control of your future instead of handing your decision-making powers to a third party, such as a judge.
Regardless of whether you choose mediation or arbitration, it is worth considering all your options, if you find yourself involved in a dispute that requires resolution.