The legal world is full of similar terms and concepts that seem identical but are actually completely different. Some terms are notably easier to distinguish but can still prove challenging to comprehend without firsthand experience. Even in legal scenarios where the general concept is common knowledge, specific situations can arise that alter how the case proceeds. This is not made easier because the legal world covers many potential issues and claims.
While you might have some insight into the different legal terms surrounding certain cases, the nature of the case also brings several new terms with which you might not be familiar. One of the most complex forms of civil law, for example, is divorce.
If you are going through divorce proceedings, you have likely heard many legal terms being thrown about with little explanation. Ordinarily, your attorney would explain the exact nature of these terms, but some inept attorneys might forgo this step.
Understanding these differences can help prepare you for negotiations, conversations, or legal filings, especially since arbitration and mediation can completely change how your divorce is negotiated.
We first need to clarify that arbitration is not a process unique to divorce and can apply to other civil suits. Divorce is merely one of the civil matters to which arbitration can be applied. As for what arbitration is, the concept is built on the fact that every divorce is meant to reach an equitable resolution that does not favor one party over the other.
The way arbitration functions is that you and your spouse must hire a single arbitrator or a panel of 3 arbitrators, depending on your needs and the state laws. The arbitrator presiding over your case will then serve as an impartial 3rd party that listens to both sides and reviews evidence before making a final decision.
Arbitrators can be found through agencies such as the American Arbitration Association, JAMS, or the National Arbitration Forum to find well-established representatives. However, you can also seek an independent arbitrator who suits your philosophical and financial needs. In some cases, going through an attorney will allow you to locate an arbitrator through them.
Once you have retained an arbitrator, you question what kind of arbitration you want. Two major types of arbitration determine how effective the process is: binding and non-binding. Depending on the form your arbitration takes, you might waive the ability to appeal the decision made by your arbitrator.
Arbitration procedures help you and your spouse reach a reasonable arrangement without seeing the inside of a courtroom. The process is only as effective as the arbitrator you retain, and both you and your spouse must agree on the arbitrator. This is why going through an agency is considered the most responsible choice. Once the arbitration begins, you will present all the evidence you would have presented in a litigated divorce proceeding to the arbitrator so they can make an informed decision. That said, the rules of evidence in arbitration are far simpler than those in a litigated case.
The discovery process used in litigated cases, including depositions and interrogatories for gathering information, is completely absent in an arbitration. Instead, important information is presented to the arbitrator over the phone so that you can send copies of documents and a list of witnesses to the arbitrator for review. While arbitration has its advantages, it is not the only course of action you can take to avoid litigation.
Divorce mediation shares a few similarities to divorce arbitration, making it a potential alternative to presenting the divorce in court. The biggest similarity is that divorce mediation requires a neutral 3rd party to oversee the negotiations.
A mediator will try to streamline the discussions surrounding:
These are some of the most sensitive topics in divorce and can trigger huge arguments that devolve quickly. The mediator offers potential compromises and works to prevent any hostility that might interfere with a reasonable settlement.
The first step to mediation, like arbitration, is finding a qualified mediator to oversee the negotiations.
While mediation can keep the divorce from being litigated, it is important to weigh the pros and cons of mediation and arbitration over litigation.
Arbitration, like most things in life, is not a perfect tool. While arbitration has advantages, it has disadvantages that affect its viability as a method for resolving your divorce. This is not to say that arbitration is a poor choice, but that weighing the benefits it offers over litigation with its disadvantages is important.
We will start by listing the advantages arbitration has over litigation:
The disadvantages of arbitration are:
Arbitration might have its share of advantages and disadvantages, but it is not the only legal process that has this issue. Mediation has an equal amount of pros and cons.
Mediation might be fairly different from arbitration, but these differences do not give mediation immunity from potential issues. Like arbitration, mediation has advantages and disadvantages that can help you determine which is best for you if you prefer to avoid litigation.
Mediation's major advantages include:
While the advantages offered by mediation are appealing, they are not always able to outweigh the disadvantages involved:
Mediation is only one tool for divorce that helps you avoid litigation. In some cases, litigation is preferable, given the disadvantages mediation brings. Ultimately, deciding to mediate is about what you think you can accomplish by sitting down with your spouse.
We know that divorce is probably the last thing you want to deal with and that the prospect of divorce can be terrifying. If part of that fear stems from litigation, the alternatives available can work. While there is no "right choice" between mediation and arbitration, they can be preferable to litigation if money is an issue or if going before a courtroom is too daunting.
Mediation can help spouses with an amicable or amenable relationship, while arbitration can give you a definitive answer without a judge's oversight. We hope this information is helpful and wish you the best of luck in whatever comes next.
We encourage you to share this article on Twitter and Facebook. Just click those two links - you'll see why.
It's important to share the news to spread the truth. Most people won't.