Mediation and Arbitration

Mediation vs. Arbitration in Family Law

It is a common misconception that when couples disagree during a divorce, a judge and court are the only answer to resolve the problem. Despite this belief, there are a number of alternatives to standing before a judge. Arbitration and mediation are dispute resolutions outside of court, and serve as reasonable alternatives when disputes arise between spouses during separation and divorce.

Arbitration and mediation are ideal for dispute resolution for a number of reasons. Mainly, most people prefer instant gratification and would prefer results faster rather than slower. Secondly, most people prefer secrecy and to keep their personal information away from the public. Arbitration and mediation sometimes allow individuals to get an outcome for their dispute quickly and efficiently, saving them not only time, but money.  Those who choose to litigate in court wait months for a court date and then weeks for a result from the judge, not to mention paying an attorney to plan and prepare for a trial. Alternatively, those individuals who opt for arbitration can get a ruling almost immediately, and those who successfully mediate can get their case at least mostly resolved before leaving the office of the mediator. Additionally, those who choose to litigate often do so in front of a packed courtroom and have their situation entered onto a public record. Comparatively, those in mediation and arbitration do so in a private room, with no details of the dispute entered in the public record for others to view.

What is the difference between arbitration and mediation?

In arbitration, the process acts as a private court system. Each side presents an argument and the arbitrator decides who wins and who loses, essentially serving as a judge that the parties agreed upon beforehand. The arbitrator provides their ruling and it is enforceable by law.

Conversely, mediation is a private negotiation between two individual parties. Each side presents an argument and the mediator provides opinions on how the two sides can resolve the matter and delivers offers of settlement back and forth. The mediator helps each side try to understand the viewpoint of the other side, while providing possible compromises, but has no actual authority to make a final decision.

What can you expect in arbitration and mediation?

In arbitration and mediation both individual parties will explain their situation to a third party, and that third party will be a trained arbitrator or mediator. Individual sides will explain what they want regarding property distribution, spousal support, or even child custody and support, and why they are entitled to that preference.  The parties may present documents and proof to strengthen their arguments.  In arbitration, the arbitrator will weigh each side’s argument and then provide a final decision as to what the resolution will be is final.  Comparatively, a mediator will make suggestions of possible compromises. While helping each side understand the opposition’s argument, and test the strength of their own, the mediator may help craft a final compromise and the individual parties may then memorialize their mediated settlement agreement.

In both mediation and arbitration the closed door meetings can last hours, even days. Despite avoiding court, and all that it entails, the process is not necessarily easy. Opposing parties may take multiple sessions to determine an outcome.

How can a lawyer help in mediation and arbitration?

Despite arbitration and mediation being outside of a traditional courtroom setting, having an attorney present is beneficial for a number of reasons. If an individual does not bring an attorney, they can more easily be outmatched by an individual who does. Arbitration still requires a party properly present evidence and present their argument in accordance with certain rules. An attorney can best help frame an individual’s argument, like they would in court, to make the third-party side with an individual on their issue. If an opposing party has an attorney who can carefully craft arguments to make the arbitrator sympathetic, an individual without an attorney could lose on more issues than they should.

In mediation, an attorney can best help an individual understand the pitfalls of accepting a certain agreement reached with the help of a mediator.   When mediation is finished, documents will be typed up memorializing the agreements and decisions made.  Contracts or consent orders entered into during mediation are binding, and if not written correctly, an individual could be exposed to additional hardships and problems the they did not consider at the time of signing an agreement. An attorney can review these documents and ensure an individual leaving mediation is not shortchanged by a poorly written contract.

Lastly, an attorney can help ensure that confidentiality is enforced and an individual’s personal information is not leaked by an opposing party. One of the main benefits of mediation and arbitration is the level of discretion it provides.  Many arbitrations and mediations end with a confidentiality clause, meaning the other party cannot disclose the proceeding’s details to anyone. If not drafted properly, a confidentiality agreement may not be enforceable. Thus, having an attorney is imperative to make sure an individual’s private matters within the arbitration or mediation are kept confidential.

What can Greenwood Law do to ensure your arbitration and mediation is successful?

As previously mentioned, there are many ways to become disadvantaged both during and after the arbitration and mediation process. Though it is convenient to not litigate in court the process still mimics that of a courtroom, and not having an attorney can lead to bad outcomes leading you to pay more and shoulder larger burdens than your former spouse or partner. Having an attorney present can ensure you are getting the best outcome possible in arbitration and mediation.

At Greenwood Law, we have multiple attorneys with experience in advocating for clients in front of an arbitrator or mediator. Having an attorney who understands the process of this type of dispute resolution is vital to ensuring that you are not shortchanged by the system. At Greenwood Law our attorneys can be the difference between a fair or unfair outcome in your separation or divorce proceeding. We are ready, through our experience and knowledge, at Greenwood Law to assist anyone in this situation. Contact us if you are in need of our services at 336-794-6138 or via our website email contact and we will be happy to assist you in this process.

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