Arbitration and Mediation: Faster, Cheaper and more Peaceful Alternative Divorce Procedures

Many individuals who reach a point in their marriage at which they can no longer envision a future with their partner, decide that divorce is their only option. Divorce, however, is never easy. It is not only time consuming and financially straining; it can also be one of the most difficult times in a person’s life. For, besides having to deal with the emotional impact that their marriage is ending, there are also a wide range of concerns that must be addressed, often in combative ways. These concerns include child custody, property division, and financial matters, among others. Thus, to simplify their separation many spouses seek alternative ways, ways that will save them time and money, and from the unnecessary emotional strain.

Unlike in the past when the only way to settle a divorce case, as well as issues related to it, was in court, there are now alternative processes that allow spouses to work together towards a settlement. Two or these processes are arbitration and mediation which allow spouses to work through their separation on their own, not leaving important decisions in the hands of a divorce court judge.

As different from a court-litigated divorce or contested divorce, which is adversarial in nature, open to the public, decided by a judge and which can drag on for months or years depending on the number of divorce-related issues that need to be settled, arbitration and mediation are private legal procedures.

Arbitration, specifically, is the process wherein an arbitrator or a third party individual (can be a lawyer or a retired judge) chosen and hired by the spouses, acts as a private judge. In this procedure, the spouses prepare their arguments and evidences which will be presented to the arbitrator by their respective lawyers. The arbitrator will decide on the case based on arguments and evidences presented. The divorce issues that can be settled in arbitration include child custody, visitation rights and schedule, child and/or spousal support, division of property and assets, and modifications to a former divorce decree. The issue of a final divorce order, however, cannot be arbitrated since arbitrators are not authorized to grant a divorce, annul a marriage, or change official family status.

All decisions made by an arbitrator are binding, even if both spouses find these contrary to their interests. These cannot be appealed to a higher court either, making both spouses stuck with whatever is decided by an arbitrator. Though arbitration has been used as an alternative dispute resolution for many years, not all states recognize it.

Divorce mediation, on the other hand, is done through the help of an objective and neutral third-party individual, called a mediator, who is usually chosen by the spouses themselves. Though the mediator can share his/her opinion to give light to the issue that need to be settled, he/she can never decide or impose anything on the couple.

Divorce mediation offers the following benefits:

  • Allows spouses to arrive at the most agreeable and workable solutions;
  • Gives the spouses total control of the proceeding and its outcome;
  • Promotes openness between the spouses;
  • Much cheaper compared to a court-litigated divorce and can take much lesser time; and,
  • Ensures privacy as the procedure involves only the spouses (with their respective lawyers, if they have one).

Despite the possibility of divorce putting order back in one’s life, the Law Office of Andrew A. Bestafka, Esq. strongly suggests that spouses, especially the one filing the divorce petition, consider a number of different factors before going through with a divorce in order to make the outcome as beneficial as possible and to avoid any errors which may arise. These factors include:

  • Knowing your family’s financial situation;
  • Determining your living arrangements following the separation;
  • Considering what type of child custody and support
  • arrangement you may want;
  • Being aware that your behavior will be under close scrutiny throughout the divorce process; and,
  • Consulting with an attorney before proceeding.
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