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Divorce Mediation vs Arbitration

By Practice Group Leader, Family Law

When it comes to divorce, you don’t necessarily have to settle your case before a judge. Divorce mediation and divorce arbitration provide you with two alternative ways you can end your marriage without having to go through the stress and strain associated with going to court

Divorce mediation divorce arbitration

These two processes differ, so it’s important that you understand each one. Below, we take a look at some of the pros and cons associated with both to help you figure out which one might be best for you and your situation.

 Divorce mediation

Divorce mediation allows a divorcing couple to reach a resolution with the help of a mediator. It is an alternative to taking the process to court and can help divorcing couples resolve a number of issues, such as division of finances, assets and living arrangements for their children.

This process is facilitated by a mediator - a neutral third party who aids the negotiations. The mediator does not take sides or provide legal advice, and they can help you draw up a Memorandum of Understanding which outlines the details of your divorce settlement.

The advantages

Often referred to as family mediation, divorce mediation offers a number of different benefits. First and foremost, going down this route could save you a substantial amount of money as the costs involved are much less than if you were to go to court. It could also save you a significant amount of time, as it’s a much quicker process.

Your mediator will be able to help you discuss your situation in a rational, calm way, and they will always remain impartial. As a result, you may find the process less emotional. Mediation also allows you to protect your confidentiality and can help to minimise conflict between you and your ex-partner.

Mediation provides both parties with the opportunity to communicate more openly and encourages respect. It can also help you to maintain a healthy relationship with your ex-partner moving forward - something that is especially important if children are involved. It can also provide you  with the techniques needed to resolve future problems that may arise.

The disadvantages

There are some disadvantages to divorce mediation. For instance, it is your responsibility to pay for your mediator sessions. However, it’s important to note that with Slater and Gordon, the first consultation with the mediator is free, and this is followed by a fixed fee structure.

Due to the informal setting, there may be issues with communication imbalance. For example, if one spouse is aggressive and intimidating and the other is shy and timid, an unfair resolution may be met. While mediators have some skills to restore this balance, there is a limit as to what they can do. This means mediation is not an appropriate route for all separating couples.

If you are unable to reach a settlement through mediation then your case may have to be referred to a judge and the decision may need to be made in court. As a result, you might feel you’ve wasted time, money and effort going down the route of mediation in the first place, making the process longer and more stressful for all parties involved.

Divorce arbitration

Divorce arbitration is another process that can be used to resolve disputes between separating parties. It is most commonly used when a couple feel they cannot move forward with proceedings but they wish to settle the dispute without having to go to court.

The process involves choosing a legal expert to act as the arbitrator - an independent individual who is appointed to settle a dispute. This person may be a judge, solicitor or barrister and they must be registered as an arbitrator. Upon being presented with the relevant information during a hearing, the arbitrator renders a decision, known as an award. Unlike in a court trial, this decision cannot be appealed.

The advantages

There are many advantages associated with divorce arbitration. Firstly, the whole process is confidential, meaning that you and your ex-partner agree to keep everything private, including documentation and the outcome of the settlement.

Since your hearing will take place in private, you will also be able to avoid the emotional stress that is usually involved in taking a trial to court.

You are also in full control of choosing who the arbitrator will be. This means that you can select an expert in a certain area of law, such as taxes or real estate value, and define the specific issues you want them to address. You will also be able to establish what procedure is to be followed and how long the arbitrator has to reach a decision.

You and your ex-partner will be able to set a date, time and location for your hearing, giving you the opportunity to pick a more relaxed, informal setting. In court, these details are decided for you..

You may also be able to benefit from a much speedier process. If your hearing was in court, it would be subject to the judge’s availability and you could be waiting a number of weeks.

The disadvantages

While there are many advantages to arbitration, there are some disadvantages too. For example, there are costs involved. You will be responsible for the paying for the arbitrator and potentially the use of your chosen venue, depending on where it is.

Also, if any evidence is required from a third party during the process, such as a new partner, bank or employer, they are not obliged to provide documents and cannot be forced to do so. The arbitrator has no power in regards to third parties.

If you believe that your ex-partner is not providing full disclosure and you do not have court orders for disclosure, your case may not be suitable for the arbitration process.

If you’re unsure whether divorce mediation or arbitration is right for you, or if you would be better taking your case to court, don’t hesitate to get in touch with our team of experts today. 

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