A common question among clients and others we meet is: What’s the difference between mediation and arbitration? This can be an especially important differentiation when it comes to family law matters, such as a divorce.
Both Mediation and Arbitration are forms of Alternative Dispute Resolution (ADR). All issues in a case are determined one of two ways: Either the parties reach an agreement or the court makes a ruling at a hearing or trial.
ADR options are processes that may be used to help the parties reach an agreement so that it is not necessary to obtain a ruling from a court proceeding. They are often used in family law cases, such as a child custody or divorce, to help settle a case and avoid the expense and emotional stress of a trial.
There are several ADR options, more fully described below. Mediation is the most common form of ADR used for a family law matter. Arbitration is also an ADR process that can be used in family law cases. However, Arbitration is not used very often in Texas family law cases. An advantage to arbitration may be the possibility of a quicker trial date, quicker final resolution, and privacy; but arbitration rulings are usually considered final and cannot be appealed.
What is Mediation?
Mediation is when a neutral person, called a mediator, meets with the parties to help facilitate an agreement. An agreement is not required and the mediator has no power to force the parties to settle
The Mediator is a the neutral party who will not make any rulings. Usually your mediator is a lawyer or a retired judge, but he or she can also be a non-attorney specialist in the subject matter (such as high-asset divorce). This person tries to bring people and their legal disputes to an early resolution through a conference.
The Mediation Outcome is under the control of the Parties who are in a dispute. Parties can settle, but are not required to do so.
The Mediation Arguments are not done by either attorney at mediation. Attorneys can speak with the mediator, but do not make any formal arguments or presentations before the mediator.
What is Arbitration?
Arbitration is basically a mini-trial. Parties can submit a dispute to an unbiased third person (an arbitrator) designated by the parties. They agree in advance to comply with the decision to be issued after a hearing where both parties have an opportunity to be heard.
The Arbitrator is playing the role of your judge, though they tend to find a middle ground. This person tends to be an attorney and the process is less formal than a court trial.
The Arbitration Outcome is outside the control of the disputing parties. Parties agree ahead of time to abide by the arbitrator’s decision.
The Arbitration Arguments are done by each party’s Attorney and presented as arguments and testimony, just as they would at formal trial or a hearing.
Choosing the Right Approach for Your Austin Divorce
If you are currently seeking a divorce and both parties wish to resolve their differences by negotiation and settlement, then you may be looking for a collaborative divorce. Collaborative Law is an alternative method of resolving a family law matter where both parties are committed to settling without court intervention. This means you are both willing to sign a contract agreeing not to go to court during the pendency of the case. If you reach a point where both parties are unable to settle, then you both agree to terminate the collaborative law process and both hire new litigation attorneys.
The goal of a collaborative divorce is to settle every issue. However, that can sometimes be difficult or impossible. If both parties cannot come to a full agreement, then you may want to consider Arbitration or Mediation instead.
Experienced Texas Certified Divorce Mediator and Collaborative Law Attorney
Capps Law Firm, PLLC offers collaborative law, mediation, and arbitration as options for handling your divorce in Austin, Texas. Kelly J. Capps is trained in Collaborative Law and believes in its power to produce the highest quality results by circumventing the stress and risks involved in litigation.
While divorce is difficult under all circumstances, the collaborative law process allows the parties to spend more time focusing on results that work for their family. Clients spend less time trying to make their factual circumstances fit into the limited options available to the court. Kelly is also a member of two legal practice groups with other Austin area family law collaborative attorneys where she works to develop and expand her skills as a collaborative family law practitioner.
This article does not create an attorney-client relationship. Its purpose is to educate the public about the topic of the difference between mediation and arbitration. This article should not be seen as legal advice. You should consult with an attorney before you rely on this information.