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How is mediation different from arbitration?

Divorce mediation and divorce arbitration are different methods of dispute resolution or ways of resolving the issues that arise when you and your spouse decide to pursue a divorce.

In divorce arbitration, spouses essentially hire a private judge to resolve their divorce. (Indeed, a great many arbitrators are quite literally retired judges.) The main advantage of arbitration is control over the schedule and litigation process when spouses know they are destined for a contested trial. Within the court system, it is common for spouses to wait years for a trial to take place, and delays are common. With an arbitrator, spouses guarantee the availability of their “judge”, and in many instances, end up spending less money than they would in a trial in court, even after paying the arbitrator’s fee.

Of course, arbitrating one’s case is really the opposite of settling. The arbitrator’s hearing might be less formal than a real trial, but the reality is that an arbitration is essentially a trial, with lawyers, evidence in witnesses all behaving in similar ways as they would in a trial. Moreover, the increased flexibility comes with a price: an arbitration result, called the “award,” is nearly impossible to appeal.

In any event, what is most important to understand when comparing arbitration to mediation is this: arbitration amounts to a private trial, while mediation process is designed entirely to avoid the trial process. An arbitrator listens to evidence and arguments and decides issues for the divorcing spouses. For attorneys and clients, preparing for an arbitration hearing is nearly identical to preparing for a trial in court. In contrast, mediation generally avoids the direct involvement of lawyers, and focuses on direct negotiation between the spouses. Instead of deciding issues for the spouses, a mediator facilitates agreement between the spouses directly.

For spouses who are absolutely certain that they will never agree, an arbitrator is good option for breaking the logjam and making the tough decision. For spouses who want to avoid trial (or a close facsimile of trial), mediation generally represents the more cooperative, less expensive and less stressful option.  

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