Family Law

What's the Difference Between Divorce Arbitration and Mediation

By Kristina Otterstrom, Attorney
There are many ways to avoid a divorce trial. Two alternatives to trial are mediation and arbitration. Both options can save you money and spare you some of the stress associated with trying your case.

Overview of Divorce Process

Many aspects of divorce are unpredictable. For example, the costs associated with your case and how long it will take will depend on your unique circumstances. However, both mediation and arbitration are ways to speed up your case and resolve your case without a formal divorce trial.

You or your spouse starts the divorce process by filing a divorce complaint. Once the complaint is properly served, the receiving spouse must file an answer or counterclaim or agree to all terms contained in the divorce complaint. At this point, a couple can resolve their case through mediation or may continue through the discovery process. The discovery process can take anywhere from weeks to months and usually includes written discovery requests, depositions, and hearings on temporary custody and/or support orders. Once discovery is complete, a judge may require a couple to attend mediation or arbitration before setting a case for trial.

What Happens at Mediation?

Mediation is facilitated by a neutral third-party. A mediator can be an attorney, but a mediator can’t offer you or your spouse legal advice. Instead, you may want your attorney to attend mediation with you and explain the legal impact of any agreement. The good news is that mediation is completely confidential and nothing you or your attorney says during mediation can be used in court.

You and your spouse will each have the opportunity to explain your case and your goals to the mediator. Depending on your relationship with your spouse, a mediator may talk with you and your spouse in the same room or separately. One benefit of mediation is that it gives you the opportunity to call the shots in your divorce case. In other words, you can settle your case on your terms. If you can’t reach an agreement at mediation, you still have the opportunity to take your case to trial.

What Can I Expect if I Arbitrate My Case?

An arbitration session is similar to mediation, except it is binding and an arbitrator’s decision is final (similar to a court order). While mediation allows you and your spouse to call the shots, in an arbitration, the arbitrator will make a decision after hearing each spouse’s side of the case.

Arbitration sessions are less formal than a divorce trial and usually a lot less expensive. Typically, you will have to pay for an arbitrator’s time, but often a divorce can be resolved in one long arbitration session rather than several days of trial. You will not have to testify at arbitration like you would at a divorce trial, but an arbitrator will probably have you submit an explanation of your case and may ask you questions during the arbitration. The arbitrator will weigh evidence and issue a final decision in your case.

Arbitration is very similar to a court proceeding, although less formal. Generally, a contentious couple that failed to reach an agreement through mediation may find more success with arbitration.

Questions for Your Attorney

  • My spouse doesn’t want to attend mediation. Can I ask a judge to force my spouse to mediate?
  • How do I find an arbitrator that’s qualified to decide my case?
  • What options do I have if I don’t like the arbitrator’s decision?
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