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Exploring Arbitration And Mediation In The Divorce Process


The divorce process can often be very contentious. When spouses are unable to agree on certain issues, they may need to consult a professional unbiased third party who can mediate these disputes and help develop a resolution that works for both parties. The following article will discuss the concept of arbitration and mediation as it relates to the divorce process.

What is alternative dispute resolution?

Alternative dispute resolution (ADR) refers to any procedure, agreed to by the parties of a legal dispute, in which they use the services of a neutral party to assist them in reaching a consensual agreement and avoiding the litigation process. Two forms of alternative dispute resolution are:

  1. Mediation: In mediation, an impartial mediator works with the parties to assist them in reaching a settlement. Mediation is a process in which an impartial professional helps both parties reach mutually agreeable solutions to the issues in their divorce or separation. Mediators help both parties discuss their preferred outcomes but do not make any decisions themselves. You can try to resolve matters such as division of assets, division of debts, child custody, child support and alimony through mediation. If mediation does not work, you can take any unresolved issues to arbitration.
  2. Arbitration: In arbitration, attorneys or parties present arguments to an impartial individual or panel with specific expertise in the conflict area. The parties usually agree to be bound by the arbitration decision as if it were a court decision. If you and your spouse can’t agree on outcomes, arbitration may be your next best option. While mediation is nonbinding, arbitration allows for judgments. You and your spouse will first need to agree on the choice of an arbitrator, who will act as a private judge (this person does not need to be an actual judge). During arbitration, each spouse may present evidence and employ witnesses to support their respective positions. Ultimately, a public judge must approve an arbitration agreement to make it legally binding.

What are some pros and cons of mediation and arbitration? 

Mediation and arbitration have pros and cons, some of which include the following:

Pros of mediation and arbitration

  • They can save time and money. Mediation and arbitration will likely be much more cost effective than litigation. Furthermore, traditional litigation could draw out divorce proceedings by over a year while mediation and arbitration could resolve most issues in a matter of weeks.
  • They help keep family matters private. Mediation and arbitration are confidential, while litigation matters become a matter of public record.
  • They allow both partners to retain control over outcomes. In mediation and arbitration, the spouses have autonomy regarding the decisions they ultimately make while in traditional litigation, a judge may resolve your issues in ways that neither you nor your spouse like.
  • They don’t preclude going to court later. If for whatever reason you are unable to work out certain issues in mediation or arbitration, you can take these unresolved matters to court for a judge to resolve.

Cons of mediation and arbitration

  • You may still want to hire an attorney for advice. Though you are not necessarily required to be represented during mediation or arbitration, it might be worth it to ensure that you get the best outcomes.
  • They won’t succeed if both partners aren’t willing to work toward solutions. Mediation and arbitration require compromise; if both parties are not willing to compromise on certain issues, the matter will likely need to be resolved in court.
  • It may be easier to hide assets and liabilities. While financial documents can be subpoenaed in court, there is no such option for arbitration or mediation. This means that a spouse could purposely neglect to present information or documentation regarding specific income, assets, or liabilities, which can result in an unfair settlement.
  • The outcome is not legally binding without a court order. Even if you and your spouse are able to come up with an agreement, that agreement will not be legally binding without the court issuing an order to that effect.

Consult an Orlando Attorney for All of Your Family Law Needs

Greater Orlando Family Law can assist you with all of your family law needs. We have experience with several areas of family law, including divorce, property division, child custody, child support, and visitation. Reach out to our Orlando family lawyers today for help.

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