Divorce is often an emotionally charged time for everyone involved. It can be full of stress about living space, custody and child support payments, alimony, and division of property. But there are processes that can ease the stress and lower the costs, especially if there are court proceedings. These processes are called “mediation” and “arbitration.” Learning the difference between the two and what your rights are in each case can help you reach the right settlement with less stress and avoid costly court time.
Mediation During Divorce
When you and your spouse cannot come to an agreement about your divorce settlement without outside assistance, mediation may be an alternative step to take. Mediation may also be ordered by a judge. If a trial is already in progress, it may be stayed (temporarily paused) until the outcome of the mediation is reached.
The mediation process takes place outside of the court with the assistance of a mediator—a neutral third party responsible for helping you reach an agreement with your spouse. The mediator does not make a ruling as a judge or an arbitrator would. He is just there to help the two of you work out your settlement together.
Mediation has several benefits for you to consider:
- Mediation is faster than litigation. Courts are frequently overloaded with cases and act slowly. Mediation is designed to keep the process moving forward.
- It is less expensive. Court fees add up, and litigation can get costly fast.
- It can be less stressful for children. Divorce can be tough for children, especially when they have to take the stand to testify.
- It can ease relations between you and your spouse. Mediation does nothing to prolong the separation process. It is also a less formal process than a trial, which can help put things at ease. However, you don’t need to be in the same room as your spouse for the mediation process, especially if you’re uncomfortable.
- It stays a trial. The trial process, if there is one in process, gets put on hold while you’re in mediation pending the success (or failure) of negotiations.
- It ends in a contract. The successful outcome of mediation is not the same as an arbitration decision or a court judgement. It is a contractual agreement between two parties and is enforceable as such.
Mediation does not by law require the services of an attorney. But should you be negotiating for large assets, including real estate or other property, you may consider the services of an experienced law firm to make sure your rights are protected and you have a good negotiating strategy. If you cannot work out mutually agreeable terms in mediation, or your spouse later decides not to abide by the mediated agreement, legal assistance can be helpful to determine how best to move forward.
Arbitration During Divorce
Arbitration is slightly different than mediation but serves a similar purpose. It can help circumvent costly and time-consuming litigation in the court system. Like mediation, it can be a voluntary process, and it can also be court-ordered. There are a few key features of arbitration that you should be aware of:
- Arbitration replaces a trial. Unlike mediation, in which a trial is merely stayed, arbitration is an extrajudicial process that replaces the need for a trial.
- It is more cost-effective than a trial. Like mediation, arbitration can also cost less than trial by court.
- There may be a panel of multiple arbitrators. All arbitrators should be neutral, much like mediators, but there may be more than one person involved in the process.
- Arbitrators make the final decision. This is a crucial difference between arbitration and mediation. Mediators rely on you and your spouse to come to an agreement; however, the arbitration panel listens to both parties and then renders a legally binding decision.
- The rendered decision is legally enforceable. Both parties are typically required to accept the decision of the panel as though it came from a court. This is unlike a mediation agreement, which is treated as a contract.
Like mediation, arbitration does not legally require the service of an attorney. However, you may want legal assistance to help ensure the panel’s decision falls in your favor. A skilled Seattle attorney can help you with your legal strategy, especially when large or high-value assets are at stake.
Whether you are involved in mediation or arbitration in the Seattle or Bellevue area, the Law Offices of Molly B. Kenny are here when you need us. For a private consultation with someone who cares, call us at (425) 460-0550, or fill out our online contact form.