During a divorce, spouses have several options for resolving their differences. Some of these options involve working together to reach an agreement without third-party intervention, while others involve seeking outside help to either bring the spouses’ positions closer together or render a decision in their case.
Two options that fall into the above categories are mediation and arbitration, respectively. Each of these methods of alternative dispute resolution (ADR) is unique, and offers different benefits depending upon specific circumstances of the case. If a divorce is anticipated, it is important to consider all available options and to pursue a strategy designed to utilize the tools that are most beneficial.
Understanding Divorce Mediation
In divorce mediation, the spouses (each represented by their own attorney) work with a neutral third party to come to mutually-agreeable terms. This third party (the “mediator”) is typically an attorney who has substantial family law experience and has received extensive training in the methods available for resolving divorce-related disputes without resorting to an outside decision-maker (such as an arbitrator or judge). The mediator is very knowledgeable about what a judge will look at when ruling on a case, which can help the parties have a realistic idea of what might happen at a final hearing. Depending upon the number and complexity of the issues at hand, divorce mediation can take place in a single session, or divorcing spouses may require multiple sessions in order to reach a full and final settlement.
In either case, the mediator’s role is not to take sides or make decisions for the spouses, but rather to help them better understand each other’s point of view. Mediators can also offer creative options for resolution; and, generally speaking, the more experience a mediator has, the better able he or she will be to facilitate an amicable divorce.
Caution: In order for mediation to work, both parties must compromise. What some parties have a difficult time understanding is that compromise means you will be agreeing to something you formerly were refusing to agree to. Be prepared when walking away from a successful mediation to feel like you “gave something up”.
Understanding Divorce Arbitration
While there are a number of differences between mediation and arbitration, the key distinction between these two ADR methods is that arbitration involves a third party making a binding decision on the spouses’ behalf. Unlike a mediator, whose role is to facilitate productive negotiations, an arbitrator’s job is to hear arguments from both sides, consider the available evidence and then render a decision establishing the terms of the spouses’ divorce.
However, an arbitrator is not a judge. Like mediators, arbitrators are typically attorneys whose practices are dedicated to helping resolve divorce and other family law disputes. As a result, once an arbitrator renders a decision, the spouses will still need to go to court to finalize their divorce. The law provides that the arbitrator’s decision is binding even upon the court, but if there is some public policy the arbitration agreement violates, the court may set the agreement aside.
So, Mediation or Arbitration?
In the context of divorce, the parties do not have to use mediation or arbitration to reach a final decision on the case. However, a lot of counties in Georgia do require that the parties at least try, in good faith, mediation during the divorce process. Also, spouses can agree to submit their entire divorce to mediation or arbitration; or they can elect to choose one of these two ADR processes as necessary when they are unable to resolve individual issues (such as alimony or property division) on their own.
Speak with a Georgia Divorce Attorney at Stearns‑Montgomery & Proctor
If you would like more information about the benefits of divorce arbitration vs. mediation, we encourage you to contact us for an initial consultation. To speak with one of our experienced divorce lawyers in confidence, please call (678) 971-3413 or request an appointment online today.