Individuals looking into getting divorced are often concerned that, if they are leaving a partner who is combative, stubborn or vindictive, they will inevitably get dragged into a disruptive, lengthy and costly battle in court to resolve all the issues associated with getting divorced. Fortunately, this doesn’t have to be the case.
Mediation-arbitration is a process for resolving issues related to the breakdown of a relationship that I recommend for most clients. The reason for this is that mediation-arbitration is a sort of one-two punch which gives the parties more control of their own process while keeping a back-stop option available if ultimately there are irreconcilable differences that require a third party to make a final decision.
For those who aren’t familiar with either term. Mediation is a non-binding negotiation process where a trained neutral third-party (the mediator) helps guide the parties through their negotiation with the goal of them coming to an agreement together. During the mediation process, nobody can be forced into a decision and both sides need to agree together before any decision to gets finalized.
Often clients feel that a mediator is an unnecessary cost. Why pay a mediator if you could just negotiate on their own for free? The reality is that good mediators do an amazing job of getting results. They have both experience and training that they use to further discussions and avoid the normal pitfalls that hold up parties. They also are on neither side, which often allows a stubborn individual to see when they might be in the wrong because it isn’t someone who is “against” them pointing it out.
Even if the mediator can’t get both sides to come to a final agreement on an issue, usually at the very least the dispute has been narrowed to a single element or two. For example: if parties can’t agree what to do with their home when they divorce, a mediator might pin-point that the real issue is how much to value the home at if one wants to keep it or it’s getting sold. This is where the second element, the arbitration component, becomes valuable.
Arbitration is a binding decision making process. The arbitrator’s role is to act like a judge and to make a final decision regarding the matter at hand. Done properly, their decisions are legally binding and it is extremely rare for a real judge in court to overturn an arbitration decision unless a grave error has been made.
Usually the mediator and arbitrator are the same person; they simply change “hats” and continue on in their new role. The arbitrator is then already familiar with the issues and the people involved. Also, unlike in a court, there is flexibility for the parties to agree on how the arbitrator will come to their decision. The parties can agree to a detailed process, similar to what would happen in court, or they can take a modified approach where only certain evidence is entered or a limited issue is decided on. Turning back to our example with the home, in normal court you can’t just ask a judge to decide how much a home is worth and then return to negotiations, but you can in arbitration.
When mediation and arbitration are agreed together, it also prevents “strong-arm” or “kamikaze” negotiation tactics where someone does something like threaten to take an dispute over $5,000 in property to court when they know it will be cheaper to agree than spend $10,000 to argue before a judge. Taking away these extreme options tend to keep the process more civil and grounded.
Throughout the mediation-arbitration process, clients can choose to have their lawyer attend sessions, advising, helping negotiate and ensuring the client doesn’t make a quick decision or the lawyer to work in the background advising and enacting decisions as the client goes through the process. Factors such as comfort and cost usually influence which course to take.
The mediation-arbitration process can save both money on legal fees and time waiting to go through the court process to get to trial. It gives the parties involved more flexibility and control, avoiding some of the worst parts of the legal process. At its best, it gives the client back control leaving them happier at the end and ready to move on with their lives.
Contact us today if you’re ready to explore mediation-arbitration for your divorce.