Divorce Alternative Dispute Resolution (ADR) – Arbitration or Mediation?

By Anthony C. Adamopoulos (© 2014)

The two most common divorce alternative dispute resolution (ADR) procedures are mediation and divorce arbitration. While each is an effective alternative, each serves a different purpose and each has its own format.

Divorce mediation is a form of dispute negotiation between divorcing parties. It is led by a neutral called a mediator. The mediator’s sole responsibility is to help the parties reach an agreement on the three major concerns of any divorce – the children, support and property division.

The mediator does not decide any issue. The mediator helps focus the parties on producing a written settlement agreement that addresses the issues that a judge would address in a divorce trial or at an uncontested settlement hearing.

In mediation, it is wise and useful for each party to have their own attorney; however, unlike court litigation, a party’s attorney does not usually attend mediation sessions. Each attorney acts as an advisor to his or her client on how the “settlement hearing judge” will respond to the settlement agreement or parts of it being considered by the parties.

Mediation is appropriate whenever two parties want to sit with each other and “work-out” their own issues, rather than engage in litigation.

Arbitration is a form of dispute decision making where a neutral called an arbitrator decides the dispute. The arbitrator’s sole responsibility is to decide a dispute between the parties. The dispute can be over any divorce issue. The arbitrator’s decision is called an Award. The Award, or its substance, is inserted into the parties’ settlement agreement. As a general rule, arbitration awards are binding on the parties. This means that, except in certain unusual circumstances, the parties cannot appeal the decision.

When the decision to arbitrate a dispute is made, it is wise and useful for each party to have their own attorney. At the arbitration hearing, each attorney will present the respective position of each party. Presentations can be simple and direct because they are not laden with the many rules associated with court litigation.

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