Divorce mediation and arbitration are two dispute resolution methods used during the divorce process as an alternative to formal litigation. Mediation and arbitration help spouses resolve issues such as property division, child support, child custody, and alimony without the difficulties of going through a lengthy court process. Divorce mediation involves hiring a neutral third party mediator to facilitate communication between the divorcing spouses, helping them reach a mutually agreeable decision. Divorce arbitration uses a neutral third party arbitrator, but the arbitrator makes the final decision.
The key difference between divorce mediation and arbitration lies in the decision-making process. Divorce mediation encourages spouses to negotiate and mutually agree on the terms with the help of a mediator. Arbitration involves a court-appointed arbitrator making binding decisions for the parties based on the evidence presented. Mediation emphasizes cooperation, whereas arbitration is more formal and resembles a private trial.
Mediation is best suited for couples who are willing to negotiate and collaborate on divorce terms in a less adversarial setting, while arbitration is best for couples who cannot agree on certain issues and need a neutral third party to make binding decisions.
What Are the Differences Between Mediation and Arbitration?
Mediation and arbitration are both methods used to help couples reach a settlement during the Florida divorce process. Each method offers advantages and disadvantages in terms of the level of control, formality, duration, expense, and level of confidentiality.
The main differences between divorce mediation and arbitration are listed below.
- Level of control of divorcing parties
- Formality
- Timeframe
- Cost
- Confidentiality
Both conflict resolution methods require a neutral third party to facilitate discussions and encourage dispute resolution.
The mediation or arbitration process typically discusses factors like child custody arrangements, assets, and necessary payments.
Level of Control of Divorcing Parties
The key feature that makes mediation attractive to most divorcing spouses is how mediators provide former spouses more control over their own decisions.
Mediation is an alternative dispute resolution process where a private mediator, usually a family law attorney, acts as the facilitator between a divorcing couple. They help the former spouses discuss marriage points requiring sharing or gaining full access.
The mediator has no right to decide for both parties and aims to help them reach an agreement and a specific outcome addressing remaining issues.
There are cases where the court system requires court-ordered mediation, such as parenting time mediation or economic mediation, to lessen the costs and stress of a divorce hearing.
The following areexamples of factors that mediation and arbitration work on:
- Spousal support
- Child custody
- Child support
- Property division
In contrast to mediation, arbitration involves hiring a third party to make final decisions based on evidence and facts.
While mediation is a facilitated negotiation, arbitration is a more judicial, court-type procedure where the arbitrator’s decision is final and often binding.
Both parties present evidence to the arbitrator, similar to a court trial, and the arbitrator’s ruling comes from the strength of each evidence.
Formality
During mediation, the mediator listens as the two parties discuss their desired changes and requests. Many mediators are also attorneys and possess legal knowledge, and they will give suggestions on how to come to an agreement over any changes.
The two parties involved are free to disregard them since the suggestions are non-binding. This freedom to creatively make decisions makes it easier to come to an agreement, allowing it to feel less restrictive than a divorce trial.
Compared to mediation, arbitration is more formal, as an arbitration agreement is needed before the procedure begins. In the agreement, divorcing couples must consent to the arbitrator’s ruling, understanding that this neutral third party takes responsibility for the final judgment.
According to the American Bar Association, arbitration is a more structured process since the arbitration contract stipulates whether the arbitrator’s final decision is a non-binding decision.
An arbitrator will serve as a private judge and make a final decision regarding the ex-spouse’s cases, as opposed to a court judge in a more public trial. Both parties must show concrete evidence to convince the arbitrator, like a more formal divorce trial.
Unlike a mediator who does not always have to be a divorce lawyer, arbitration follows the legal process more strictly, ensuring that two parties must agree or compromise with the ruling.
The divorcing couple may proceed to arbitration if mediation is unsuccessful due to any particular issue. Note that mediation is only binding if the agreement is signed by the concerned parties.
Duration
Mediation takes less time than arbitration, with most mediations lasting up to three months. During that time, the mediator will continuously work with each ex-spouse to ease the divorce process.
Mediation involves private and joint sessions with the mediator, allowing for healthy communication and encouraging both parties to agree on a final decision. This makes the process faster as the divorcing couple has more freedom and flexibility.
In contrast to mediation, arbitration requires a longer time frame to allow both parties more time for the discovery phase, where each compiles solid evidence against the other.
It is a time-consuming process, often taking 16 months or more to complete. Due to needing substantial evidence, the complexity of each case, and the need for multiple sessions, this timeframe makes it more challenging for some former couples.
Unlike mediation, there are no private consultations with the arbitrator. Whether it is a binding arbitration or not, former spouses must present evidence under oath and go through processes similar to a court case without an actual judge and with less cost.
The need for an arbitrator to consider all evidence, facts, and statements makes arbitration more lengthy and costly.
Note that an arbitrator’s final decision can be either legally binding or non-binding. The former cannot be appealed and requires assent from both parties, while the latter is advisory and can be rejected by both parties.
Cost
Mediation costs are cheaper than arbitration due to the typically shorter timeframe. The flexibility in how a mediator works divorce cases and its non-binding nature also make it cheaper than an actual court trial.
In contrast to mediation, arbitration is more expensive due to the need for legal representation and the time needed to review all arguments and evidence.
While it is cheaper than filing at a family court for traditional divorce litigation, arbitration filing fees can go up to $750 or more. That does not count the hourly rate of the arbitrator, administrative costs, and any additional lawyers or experts.
Mediation costs are attractive for former couples wishing to have a relatively more relaxed and cheaper divorce process. However, they risk possibly not accomplishing all the changes they want to happen.
Meanwhile, arbitration sessions are more costly but provide a streamlined procedure that solves all possible issues, even with its time-consuming nature.
The arbitrator will take all the necessary steps to ensure all evidence and issues are considered. This can lead to longer sessions and potentially more cooperation between spouses.
Confidentiality
Unlike a litigated divorce court hearing where transcripts are kept, details discussed in either mediation or arbitration are not kept on the public record.
This rule encourages divorcing couples to share all necessary information without worrying about uninvolved parties learning the cause of divorce.
To ensure privacy, former couples attending mediation must sign a confidentiality agreement before beginning the procedure. A mediator is not allowed to share information with those outside the agreement.
However, in arbitration, divorcing couples may request that the decisions be made publicly available in a written petition.
The arbitration rules in Florida make it clear that without the consent of involved parties, any proceedings, awards, and decisions from the arbitrator cannot be made public.
Both alternative dispute resolution methods aim to make divorce settlements easier for the former couple, skipping the need for a costly court trial.
When is Divorce Mediation Better than Arbitration?
Mediation works best for solving divorces related to problems in the relationship itself. Such problems can range from infidelity to financial and family problems.
While mediation also covers more complex circumstances, such as child custody, support, and finances, the mediator’s main goal is to act as a guide for each spouse.
Since a divorce mediator cannot make the final decision themselves, they aim to help couples have healthy and mutual agreements.
Unlike a traditional court, where all discussions are in legal terms, and a divorce attorney is required, a mediated divorce allows couples to work together to find new ways to solve each issue.
They have the power to either agree or disagree with the mediator while also complying with law regulations.
Mediation allows their issues to remain confidential while building new communication strategies. Like a marriage counselor, mediators help create a free space for the couple to discuss problems and steps to move forward.
One of the key features that makes mediation attractive to divorcing spouses is how former couples are not bound to have external forces resolve their problems.
By skipping the need to attend court and learning to work together, each spouse works together to arrive at an agreed outcome. However, not all reasons for divorce can be solved by the parties involved.
When Is Arbitration a Better Solution Than Mediation?
In cases where one former spouse cannot agree with the other during mediation or if separation causes are complex, divorce arbitration is the next best step.
A mediator is limited in what they can do, and their lack of power regarding the final judgment means that agreements made during mediation may change due to other circumstances.
An arbitrator can decide which terms and conditions will apply to the divorced couple, making it a faster choice for couples who do not want to go through mediation or a court trial.
This is especially true in severe cases. Similar to a court case where all evidence is judged fairly, the arbitrator uses their knowledge of law, evidence, and facts to decide what happens next for the couple and their assets.
The arbitrator’s decision can be binding, depending on the prior contract agreement. However, it is important to note that an actual court trial is recommended to resolve the issues fully in more complex cases with a clear disregard for the law, such as fraud or abuse.
Whether a former couple decides to hire a mediator or an arbitrator, it is crucial to understand each one’s advantages and disadvantages.