Divorce Mediation vs. Divorce Arbitration: What’s the Difference?
- Dispute resolution in divorce
- What is divorce mediation?
- What is divorce arbitration?
- Weighing the pros and cons
Even in the best of circumstances, getting a divorce is physically and emotionally exhausting. One of the best ways to get through a divorce quickly is to resolve any disputes with your spouse outside of court. Two primary methods are mediation and arbitration.
Dispute resolution in divorce
A divorcing couple has lots of important issues to sort out. Some of the big ones may include child support, spousal support, and property division. If these issues are not resolved early on, a judge may have to resolve them for the divorcing couple. Most people dislike this idea because they don’t want a judge who does not know them making such big decisions for their lives.
Mediation and arbitration fall under the umbrella term “alternative dispute resolution,” or ADR. Both methods can help you save money without having to resort to a costly and time-consuming court battle.
What is divorce mediation?
Divorce mediation is a process in which a couple works with a trained third party – a mediator – to resolve issues related to their divorce settlement. A mediator does not make decisions for the couple. Rather, they foster communication so the couple can come to an agreement on issues like property division, child custody, child support payments, and spousal support payments.
How long does mediation take?
The divorce mediation process can last a few hours or take several sessions. It all depends on how open and willing the parties are to communicate and reach suitable resolutions.
A divorcing couple with kids might work with the mediator to create a co-parenting plan. They might work with the mediator to draft a marital settlement agreement that details who gets what property and assets.
Any issues that can't be resolved in mediation sessions must be taken to court. But mediation is a lot less expensive and time-consuming, and it takes place outside of the public eye. For these reasons and more, many couples find mediation appealing.
Many states require couples to engage in at least one mediation session before the divorce (shortly after filing). The hope is that the couple can avoid costly and time-consuming litigation by resolving their issues out of court. In turn, this alleviates some of the strain on divorce courts.
A good outcome for court-ordered mediation would be for a couple to come to an agreement on all the issues in their divorce. This would save both parties time and money and likely result in a more amicable split. But not every case is resolved through mediation, and some couples must still go to court to finalize their divorce.
Even if the couple cannot resolve all issues in mediation, they may be able to resolve some of them. Although a judge will still have to step in, it can shorten the overall time required in court.
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What is divorce arbitration?
Like mediation, divorce arbitration is a process in which a neutral third party helps divorcing couples resolve their disputes. But the process differs from divorce mediation in that the arbitrator is ultimately the one who makes the decisions.
The arbitration process is less formal than a court hearing but more formal than divorce mediation. The arbitrator listens to evidence provided by both sides and makes decisions based on what they feel is fair. The arbitrator’s decision will be final, so it’s important for both parties to prepare their case fully and present it fairly.
Arbitration requires less time and money than going to court, and it often results in a quicker resolution – but it still adds to the cost of divorce. It is important to remember that the arbitrator's ruling is final, so you need to be prepared for all possible outcomes.
Weighing the pros and cons
Benefits of mediation
- Mediation costs less than arbitration.
- Mediation can help disagreeing couples reach an agreement – even those who don't want to be in the same room with one another.
- In mediation, both parties have a say in the agreement. This is often preferable to leaving it up to a judge.
- Mediation offers more flexibility and creativity in dispute resolution than arbitration.
- To find the best solution for everyone, a neutral mediator helps couples explore all options. This can be especially helpful for couples with complicated or high-conflict divorce.
- Mediation costs less than arbitration. It also costs less than a litigated divorce.
- Mediation takes a shorter amount of time than going to court.
Drawbacks of mediation
- Although you have a voice, you are unlikely to get everything you want in mediation.
- Although mediation may generate a better outcome than arbitration, it also takes more work.
Benefits of arbitration
- Arbitration is often a quicker and more efficient way to resolve divorce disputes than mediation.
- Since the arbitrator's decision is binding, there is usually less back-and-forth between the two parties than in mediation. This is attractive for couples who want a quick resolution to their divorce.
Drawbacks of arbitration
- Arbitration costs are typically higher than mediation costs.
- The decision-making arbitrator may not take into account the unique circumstances of each individual, which could lead to unfair outcomes for some parties.
While divorce arbitration and divorce mediation may seem similar, they are actually quite different processes. In arbitration, the two parties present their case to a neutral third party who makes decisions that are binding. In mediation, the two parties discuss and negotiate terms with the help of a third party. If an agreement is reached, it is put into a legally binding contract.
At Hello Divorce, we’re here to answer your questions and provide the support you need, whether you’re in the beginning stages of the divorce process, in the thick of it, or ready to accept a marital settlement agreement and start your next chapter.