Often people confuse the concepts of mediation and arbitration. Both fall under the general heading of Alternate Dispute Resolution or ADR. ADR is a means by which to encourage and even facilitate a resolution of legal disputes outside the Court system. For a variety of reasons, not the least of which are an increase in the number of cases and a decline in the number of court personnel resulting from budgeting constraints, case backlogs are increasing at an alarming rate.
In an effort to move disputes through the system faster, our court system encourages the use of alternate paths to reach a resolution. This is most prevalent in the Family Court where caseloads are the greatest. Fewer judges than just a year or two ago must handle increasing caseloads in a wide variety of family-related matters – divorce, domestic violence, guardianship, juvenile, adoption and more. In order to free court personnel to handle cases that do not as readily lend themselves to settlement (i.e., domestic violence, guardianship, juvenile and adoption cases), divorce cases are, in ever increasing numbers, being referred to mediation and/or arbitration.
Mediation is a process in which a “third-party neutral” is selected by the parties. The mediator then tries to help the parties reach in agreement. Most frequently, the parties participate in mediation with their lawyers. Depending on the unique characteristics of a case, a settlement may require only one session. More frequently, two or three sessions are needed. In cases involving complex factual or legal issues, many sessions may be necessary. A successful mediation results in an agreement that is committed to writing and signed by both parties. It, thus, becomes a binding contract and will become part of the Judgment of Divorce.
Arbitration also requires the selection of a “third party neutral”, but that is where the similarity ends. The arbitrator does not assist the parties in reaching an agreement. The arbitrator listens to both sides of the case and then makes a decision by which both parties are bound. The “rules of engagement” are agreed on at the outset. Arbitration can be a relatively informal process. It can also be as formal as a trial – with the strict enforcement of rules of procedure and rules of evidence.
Each side to the arbitration presents his/her testimony and evidence. At the conclusion of the presentations, the arbitrator renders a decision in writing – much like a judge would after a trial – and the parties are bound. The Arbitration Award is then converted to a Judgment of the Court and enforceable as such.
Mediation and arbitration can save time and money by shortening the time it takes to finalize the divorce because, although the court monitors the progress of the case, most of the heavy lifting is done outside the court system – away from the delays and backlogs that have become all too common.
