Mediation and arbitration are two forms of alternative dispute resolution used in divorces to gain the assistance of a third party to settle property division and child issues without relying on a judge or jury to resolve those disputes in court. Each method has its advantages and disadvantages. Neither is always the most appropriate technique to resolve a dispute. Generally you want a family law attorney on your side in either procedure.
Mediation is a negotiation between the parties with a neutral third party mediator who helps the parties reach an agreement. The mediator can discuss the merits of each party’s position and offer solutions for settlement but the parties are not bound by the mediator’s recommendations. The goal of mediation is for the parties to form a binding agreement. Mediation can be voluntarily agreed to by the parties or required by the family court before the judge will hear the case.
Mediation is like marriage counseling. Both parties have their positions on issues and the counselor tries to open up communication and let the parties work through their problems. The counselor does not decide who is right or wrong on the issues in the marriage. Like marriage counseling, it is not always successful at working through all the issues. Also like marriage counseling, it only works as much as the parties want it to.
Mediation can be an expensive option for reaching a settlement because it requires paying each person’s lawyer for the actual mediation plus preparation time. The mediator also must be paid for his or her time. The risk of walking away with no settlement makes mediation an even more costly option. However, it can be effective as long as all parties involved want to reach a solution. Unfortunately that is not always the case.
Arbitration is another process for resolving a dispute in a family case outside of the courthouse. Arbitration also involves a neutral third party but unlike a mediator who is helping the parties negotiate with each other, the arbitrator makes a binding decision. In arbitration the parties agree by contract to let the arbitrator have the final say on the disputed issues. The arbitrator will conduct a hearing and issue a decision. The parties then use the arbitrator’s decision to draft the divorce decree and submit it to the family court as an agreed divorce decree.
Arbitration is a less formal approach than the rigid rules of litigation in court but is more formal than mediation. Arbitrators are not bound by the same procedural rules as the courts so they can hold hearings based on the rules they feel best allows them to reach a decision. That can be a benefit when the formal judicial process would be more expensive than arbitration or the issues in dispute would not benefit from a full blown courtroom trial. It can be a disadvantage in some cases where the formal procedural rules governing the courts would benefit clients or where the judge’s experience dealing with family cases would be beneficial. Arbitration is often more expensive than mediation because it is a more involved process but because a decision will definitely be reached by the arbitrator it does not carry the risk that you will walk away empty handed. I am not always a fan of arbitration but there are some cases where it is the best option. That is especially true in cases where there are a lot of assets or complex assets, such as business ownership, and the arbitrator is experienced in sorting through assets and understands the property rules in Texas.
At The Kielich Law Firm I can represent you in mediation and arbitration of your divorce or child custody case. We can discuss your needs and what options will reach the best goal for your needs. Contact my office today to discuss your case.