Description
An alternative form of dispute resolution, mediation and arbitration can save time, money, and a great deal of stress for the parties involved. Successful mediation can not only resolve your issues but also provide you with a convenient timetable that meets your busy schedule. It is important to choose a mediator who understands the collaborative process and has experience settling cases both outside and inside the courtroom.
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A mediation is a low conflict form of alternative dispute resolution. Mediations are attended by the mediator and the parties to the mediation. Sometimes they'll attend without lawyers, and many times they'll attend with their lawyers. It's important though, if they're attending without their lawyers, that they have a lawyer to consult with throughout the process so that they know what their rights are and what their obligations might be, because a mediator isn't giving them legal advice and isn't representing either one of them.
Arbitration is the private determination of a dispute in a divorce case. So it is basically hiring a private judge to determine the issues in the case. It's different than mediation because mediation, it's an impartial person trying to help the parties settle their case. An arbitrator isn't trying to help anybody settle their case. They're just being presented with the facts, the evidence, and they're making a decision regarding all of the issues that are apparent in the case.
Deciding whether or not to mediate or arbitrate is a good question. Most divorces in New Jersey will go to mediation at some point because of the way our court is designed in terms of our system, if your case is not settled up until a certain point, the courts will force you to go to financial-economic mediation.
So some of the benefits of arbitration are that you get to select your arbitrator. So you could pick somebody extremely skilled in family law to decide your issues. Also, arbitration is private as opposed to court. It's also more efficient because you can schedule your arbitration to be on a Tuesday at 4:00, from 4:00 to 7:00 p.m. if that's what you want to do. You're not going to do that with a court. So while you're paying for an arbitrator, and it might seem like it's more money, it's actually less because it's more cost-efficient.
If you go to mediation and the mediation is successful, it can resolve all your issues. So at the end of a mediation, you can ask for what's called a memorandum of understanding, and that will be an outline of what you have covered in the mediation and what some tentative agreements might be. That is not binding. But if you conclude your mediation with a term sheet of the issues that have been resolved in a case and that's signed, that can be binding. So you can leave your mediation with a binding deal. You want to make sure when you're selecting a mediator, that that mediator has significant experience in family law, somebody who's tried cases before, somebody who's settled their own cases and knows how the issues typically get resolved in court.
I am a court-appointed custody mediator. I am also on the roster for financial-economic mediation, and on the arbitration end, I'm trained by the American Academy of Matrimonial Lawyers as an arbitrator.
