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What is the Difference Between Mediation and Arbitration?

Many people do not understand the difference between mediation and arbitration. Both are forms of Alternative Dispute Resolution – i.e., the resolution of the divorce or family law issues outside of the normal court proceedings.

Most mediations and arbitrations take place when parties are going through a divorce. Divorce cases may involve legal decision making and parenting time issues if their are minor children, valuation of community property, division of community property, confirmation and separate property, division of community debts, spousal maintenance, child support and other issues. However, both mediation and arbitration are also available in other family law proceeding (i.e., establishing paternity, non-divorce legal decision making and parenting time issues, child support issues, modification actions, enforcement actions, premarital agreements, post-marital agreements, etc.). Generally, both parties have to agree to either procedure, although the Courts sometimes order the parties to attend mediation even though one of the parties does not desire to participate.

The following explains what each is and what they entail.

What is Mediation?

Mediation is generally conducted by a neutral professional (i.e., the mediator) who assists the parties in resolving their issues through settlement without the necessity of an evidentiary hearing or trial. The mediator is not supposed to “take sides”. The best  mediators start with a facilitative approach. This means they explore settlement without necessarily providing an opinion as to whether one party’s position is better than the other. Some mediators may take a more evaluative role, i.e., the mediator may explain what the law provides and may provide the parties with his or her opinion regarding what the Court may do under the circumstances. Mediators with little or no litigation experience do not fully understand Arizona’s complex divorce and family laws and should avoid providing any opinions regarding what the Court may do. If you have a good divorce and family law attorney, your attorney will likely recommend certain mediators that are experts in divorce and other family law issues.

Mediations generally take place at the mediator’s private office. Some mediations occur in the same room (i.e., both parties and the mediator are in one room – as well as the attorneys if involved). Most mediators, however, caucus between the parties. This means the parties are in separate rooms and the mediators go back and forth between the rooms and attempt to resolve the issues. If agreements are reached, the mediator (if also a licensed document preparer) can draft the final settlement documents to provide for the Court’s approval.

Mediation is a confidential process, meaning that whatever is said during the mediation cannot be used in subsequent litigation between the parties (i.e., only the signed agreements are admissible if such are later contested). Mediation can be an excellent method to settle all issues without having to go to trial. However, parties are generally advised to obtain and exchange all information and necessary documents to identify all community property and debts and any other material information (such as property values etc.) prior to proceeding to mediation. If the parties both have all of this information such formal disclosure may not be necessary. In the event that all information has not yet been shared, the mediator can assist the parties in reaching agreements regarding the information and documentation that needs to be disclosed.

Some mediations can be completed fairly quickly (i.e., in an hour or two). Some may take a full day. In rare cases, mediations may extend over a number of days depending on the number of issues, the complexity of the issues, and how quickly the parties can reach a resolution.

The bottom line is that if you settle all issues during a mediation, both parties can avoid going to trial and can then put an end to the divorce or other family law proceedings.

What is Arbitration?

While mediation is a process to attempt to settle issues, arbitration takes place regarding issues that the parties are not able to settle. Arbitration is not available unless both parties agree to such process. Arbitration is when parties hire a neutral expert attorney to basically act as a private judge. The advantage to arbitration is that you can generally schedule an arbitration hearing much more quickly than a trial through the regular court system. You can also get more time to present your case if needed than what is generally allowed by judges in the traditional litigation process. This can be very important if you have complex or factually detailed issues. You can also generally obtain quicker rulings through arbitration. The arbitration process is often less formal and demanding than traditional litigation.

Although all Superior Court judges practiced as attorneys prior to becoming judges, many have never practiced in divorce or family law before. Thus, hiring an expert divorce and family law attorney as your arbitrator may help ensure that you have somebody making the final decisions that has many years of experience and specialized knowledge regarding your issues.

Sometimes the parties first agree to hire an expert attorney as the mediator, and then give such person authority to “switch hats” and sit as the arbitrator to make decisions regarding any issues that were unable to be settled through mediation. This can be a great time saver as you do not have to wait for your trial, and because the mediator is already familiar with who you are and what the issues are.

The parties may agree to waive any rights to appeal the arbitrator’s final decisions or may agree to very limited appeal rights. This can also save the parties’ substantial post-decision expenses.

The regular Court process can take many months and sometimes years to complete. Arbitration often provides an expedited process that can save the parties substantial attorney fees and costs in the long run. Although you pay a private arbitrator fees for his or her time (as opposed to the regularly appointed judge), in our experience you will save far more in attorney fees in the long run through mediation and/or arbitration, not to mention getting on with your life much more quickly.

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