Mediation & Arbitration
The traditional divorce process can be very timely, costly, and stressful. Arbitration and mediation, both forms of alternative dispute resolution (ADR), have become increasingly popular alternatives to settle family disputes and dissolve marital relationships at less cost. Mediation and arbitration processes can be used to resolve any family issue that may be costly or highly personal such as custody, child support, alimony, parenting time, division of property, counsel fees, and business valuation, to name a few. Arbitration and mediation allow you to finalize your divorce and resolve disputes outside the courtroom, avoiding the formalities and extended timetable to be heard before a judge to bring closure to the taxing process.
Dealing with divorce or family law issues can be highly emotional, which lends itself to developing into a conflict-charged process, but it does not have to be; mediation can help curb that progression. Mediation is ideal for parties who want to maintain an amicable relationship with each other, retain control over the legal process, and avoid the formalities of the court. Going through the court to dissolve your marriage can often take over a year to finalize and be filled with uncertainty. You can utilize mediation if you want a faster and cheaper option to resolve your family issues, dissolve your marriage, or speed up legal proceedings.
Mediation can be described as an accelerated negotiation led by a neutral third-party expert in conflict resolution, known as the Mediator, who sits down with both divorcing parties and helps guide them through an open discussion. The goal of mediation is for both parties to identify their marital issues, talk through solutions as unique to fit their situation, and attempt to finalize an agreement amongst themselves. If the two parties come to an understanding on some or all issues, the Mediator may put together a voluntary agreement in some form that contains the essential terms the parties agreed to on their own. Only upon both parties signing a term sheet or Memorandum of Understanding listing the agreed terms do they become binding and can be incorporated into a more detailed matrimonial settlement agreement allowing the parties to spend less time or skip the courtroom altogether.
Mediation is a voluntary process and is almost always available if you have an outstanding family or marital issue you want to address and both parties agree to sit down with each other, whether before you file for divorce, during the divorce, or after you finalize the divorce. Attending mediation can be mandated by the court, but you are never required to agree on any issue in mediation; however, know that if the parties come to no resolution, then the court may decide the issues.
Mediation gives the divorcing parties control and autonomy over the dissolution of their marriage and their family's relationship. Divorcing parties can pick their Mediator, where they want mediation to occur, and when it takes place, allowing them to go through the process when it best fits their situation. Divorcing parties are more active participants in mediation than in arbitration or court. Ultimately, it is up to the parties to discuss as many or as few topics as they want with the Mediator there to help guide the conversation. If the parties do not reach an agreement amongst themselves, the Mediator has no power to step in and decide; ultimately, it is up to the legal parties to come to their own solution.
Mediation is non-binding; by agreeing to try mediation, you do not give up any right to attempt to arbitrate or litigate the matters you fail to agree on and cannot sign a binding agreement for. Parties can choose to treat mediation as an initial step in their divorce processes, and if partial or no agreement comes out of the process, you may take the outstanding issues to court. Everything you say in mediation is private and confidential, and thus it allows for venting and open dialogue if you come to partial or no agreement; you may not discuss anything from mediation in later court proceedings.
Beyond being a cheaper, quicker, and less formal alternative to dealing with marital issues than going through the court system, mediation can help set the tone for your relationship with your ex-spouse after divorce. Mediation allows spouses to tailor an agreement and develop creative solutions that fit their needs that the court may not be able to offer. Meditation fosters collaboration, as two spouses work together for an outcome that fits the needs of each other in a relaxed environment. Mediation results are not labeled in terms of wins and losses but focus on the couple maintaining a positive relationship specifically suitable for spouses who have children to continue to raise together and want to preserve strong family ties.
Arbitration is another option to pursue if you want to dissolve a marriage or solve a family law issue outside of court; however, it shares a lot of differences with mediation that may make it more desirable for your situation. The arbitration process is more formal than mediation but less formal than the courtroom. It is ideal for parties who view their family law issues or divorce proceedings as high stakes or want a sense of finality but want to personally be more hands-off than the mediation approach offers. Arbitration is ideal for specific family topics that take more time and, therefore, are more expensive to handle in the courtroom. Topics such as Child Custody, Alimony, and Business Valuation, but any topic you wish, can be singled out and sent to arbitration for a cheaper but final decision no matter the outcome, which mediation cannot provide.
Arbitration is when you and your spouse appear outside the court system to have your issues decided for you, similar to a Judge deciding your case. Striking the middle ground between mediation and the courtroom, the parties’ hand over complete control and resolution of the issue(s) to a neutral third-party expert in the relevant legal field, known as the Arbitrator, who is acting in a decision-making capacity in the proceeding. Arbitration is more formal than mediation; the parties represented by legal counsel present evidence and the case and are subject to discovery and testifying under oath. The Arbitrator acting like a judge is there to hear facts and evidence presented by the party's lawyers. Unless the parties agree in advance for the decision to be nonbinding, the Arbitrator will decide specific marital issues and leave the parties with a binding, final decision no matter their final feelings and often agreed in advance by the parties to be non-appealable.
Arbitration still allows for a less formal proceeding in offices rather than a courtroom; however, it is more structured than mediation. The Arbitration process by default is governed by NJ Arbitration Act N.J.S.A. 2A:23B-1 to 32, which outlines procedures both parties must follow during evidence and case presentation. The act gives flexibility to the proceedings allowing the parties to choose what issues they want to send to arbitration, who will be the Arbitrator and the location of arbitration. While still streamlining the process, providing finality to the proceedings by allowing the Arbitrator to issue an Award that sets forth a decision and agreeing in advance the Award will be binding and not subject to appeal. The parties will then present the Arbitrator's Award to the court, who, upon accepting the Award, issues a Judgement of Divorce, including the decisions made in the Arbitrator's Award. Given that the Arbitrator, like a judge, adjudicates the family and divorce topics you choose to send to arbitration, it is vital to pick an experienced arbitrator who understands the legal field.
Not only do the attorneys in the firm use mediation and arbitration services to assist settlement negotiations, but the firm also offers these services. If you are already represented by counsel, please consider utilizing our highly skilled mediators and arbitrators. If you have questions about mediation or are interested in mediating your divorce, please contact Snyder Sarno D'Aniello Maceri & da Costa LLC and schedule a consultation.
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