Resolving Family Law Matters outside of the court with a Mediator or Arbitrator
In her new blog, Liz Early gives insight into the differences between a mediation and arbitration and which of these alternative dispute methods might work best to resolve a family issue.
I often have clients ask me about alternative dispute methods to resolve their family law matters apart from submitting their case to the court system. Due to the highly complex and emotional nature of these types of cases, a lengthy trip through an often delayed and methodical court system does not appeal to families who want to resolve their disputes quickly and away from the public eye. These parties may be willing to pay the cost of resolving their disputes outside the court system. Mediation and arbitration are two of the most common alternative resolution methods utilized by attorneys, including family law attorneys.
Mediation is a process by which you and the opposing party come together with a trained mediator to discuss the resolution of your matter. In contrast to labor or employment mediation, family law mediation typically takes place without attorneys present, although both parties are encouraged to speak with their attorneys about any suggested resolutions or any questions that they have. The mediator is a truly neutral, specially trained party (often an attorney) who does not represent either of the parties in the matter and is there to encourage discussions and facilitate the formation of solutions to complicated or disputed issues. A mediation can involve just one mediation session or, as is often the case in divorce and custody matters, can extend into multiple mediation sessions.
Mediation is a voluntary process and is only fruitful if both parties are willing to negotiate and reach a resolution. Since mediation requires a commitment to being candid coupled with a willingness to compromise, the process is not a good resolution if there is a history of abuse between the parties or if the matter is so highly contentious that settlement discussions are not possible.
Does a Family Law Mediator have legal authority to uphold rulings?
The mediator does not have the authority to force the parties to enter into an agreement. Any agreement that is reached at mediation is voluntary. Sometimes the mediator may be willing to draft an agreement that the parties sign. Other times, the mediator prefers to draft what is typically called a Memorandum of Understanding which summarizes the parties’ agreement(s). The parties can then consult with their individual counsel to transform the terms in the Memorandum of Understanding into a formal agreement that can be signed by the parties and submitted to the court.
What’s the difference between a Family Law Mediator and Arbitrator?
Arbitration is a process by which parties submit to the binding authority of a third party (the arbitrator) in lieu of submitting to the authority of the court. While both arbitration and mediation are voluntary and both involve some degree of negotiations and compromises by the parties, arbitration is much more akin to participating in a trial before a judge. The arbitrator is granted the authority by the parties to enter a binding decision that the parties must follow even if they do not agree with the arbitrator’s decision. In some cases, parties will agree that an arbitrator decision may be reviewed by the court; however, typically the basis for submitting to arbitration is that the arbitration replaces the authority of the court entirely.
Arbitration is appealing to parties who have complicated cases or cases that require more detailed or more prompt attention than the heavily burdened court system is able to give to the case. Arbitrators are typically very experienced and skilled attorneys who are able to understand the nuances of complex cases, typically complex financial cases with unusual compensation issues or unusual asset types.
In an arbitration, the parties are both given the opportunity to present their evidence and argument as though the matter was before a tribunal after which the arbitrator issues a decision, typically a detailed written decision. There is often a period by which either of the parties may request reconsideration of any part of the decision due to alleged factual or legal errors.
Should we utilize a mediator or arbitrator for our family dispute?
Both mediation and arbitration can be enormously helpful in moving a case to a resolution without involving the court system. It is essentially up to the family to decide which route they feel will best mitigate their differences. Both mediation and arbitration can also help parties reach a resolution without increasing the animosity between the parties as often happens when litigation within the court system becomes a necessity. The attorneys at High Swartz handle a wide variety of mediation and arbitration matters and our Family Law Department has extensive experience in overseeing the mediation and arbitration of divorce, support and custody matters. If you are interested in discussing arbitration or mediation with a member of our legal team, please reach out to set up an appointment to discuss your options and whether you are a candidate for these alternative case resolution methods.