Mediation/Arbitration: the 5 W's

the 5 W's

What is Mediation/Arbitration?

Mediation/Arbitration is a way to resolve a dispute that involves parties working with an independent third party. This individual first takes the role of mediator and attempts to work with the parties to resolve their dispute on their own. If the parties cannot reach an agreement, or a settlement, the mediator becomes an arbitrator, and makes the decision for them, much like a judge would. By agreeing to mediation/arbitration, the parties are contracting out of their right to take the matter to court, and have chosen to have a private arbitrator decide their matter, instead of a judge.

Who is Mediation/Arbitration For?

There are several ways to resolve conflicts in a divorce or separation. You may reach an agreement with your former partner without needing the assistance of lawyers. Your lawyer, and your former partner’s lawyer may reach a settlement through a negotiation process, as instructed by you. You may take your matter to court, and have a Judge decide it for you. Mediation/Arbitration is another alternative. It is appropriate for anyone in conflict, regardless of the issues in dispute and the level of conflict. It can be a little more complicated when a situation is characterized as “high conflict”. While couples who are experiencing a high degree of conflict can resolve their issues at mediation/arbitration, particular safeguards need to be in place for parties with a history of domestic violence so the mediator/arbitrator should be advised of that history in advance.

Where Does Mediation/Arbitration Take Place?

Mediation/Arbitration usually takes place in a boardroom, at the mediator/arbitrator’s office. Both parties to the dispute and the mediator/arbitrator attend each session. The parties are free to attend with legal counsel if they wish. In certain situations, it may be appropriate for the parties (and their legal counsel) to sit in separate rooms,while the mediator/arbitrator goes back and forth.

When Should Parties Attend Mediation/Arbitration?

Parties can attend mediation/arbitration as soon as a dispute arises and they agree upon this method of conflict resolution. That said, the mediation/arbitration process instead of court is appropriate at any stage of a dispute, even where the parties are already involved in a court action. Attending mediation/arbitration to resolve your disagreement as soon as possible avoids a lengthy and expensive legal battle.

Why Choose Mediation/Arbitration?

Mediation/Arbitration combines the advantages of both mediation and arbitration. Mediation gives parties the ability to work towards a creative, customized solution where they remain in control of the result. However, in the event they are unable to achieve a mutually agreeable resolution on any issue(s), they agree to be bound by a decision imposed upon them by the arbitrator. It is likely the most cost effective option available for the resolution of a dispute since the arbitration acts as insurance for a timely resolution, without the risk of the cost, conflict and turmoil associated with prolonged litigation.

The advantages of Mediation/Arbitration include:

  1. Fast End to Conflict – Mediation/Arbitration offers a way for parties to end a dispute, regardless of whether or not they are able to reach an agreement on all issues in dispute. As such, it is likely the fastest way to resolve a dispute. This method of resolutions allows a dispute to end quickly, in a matter of hours or weeks, as opposed to the months and even years it takes to achieve a resolution through the court system.
  2. Affordable – Mediation/Arbitration offers a less expensive way to resolve a dispute. It is an easy, user-friendly process that can be navigated without legal counsel. It allows parties to make their best efforts to achieve a mutually agreeable solution but provides certainty that the conflict will end even if an agreement is not possible on all issues.
  3. Experience – Mediation/Arbitration involves parties agreeing upon who to retain as the independent third party mediator/arbitrator. Parties are free to choose a professional with extensive training and experience in family law. Doing so will allow parties to be confident that their matter will be resolved in a thorough and accurate manner. Judges at court have a variety of backgrounds prior to joining the judiciary, and may not have ever practiced family law in their legal careers.
  4. Consistency – The Mediation/Arbitration process involves parties working with one professional. As a result, the mediator/arbitrator becomes familiar with the parties, their family circumstances, the details of their property, personal dynamics, specific challenges, etc. In contrast, traditional litigation involves parties attending court on multiple occasions and parties appear before whatever justice is sitting. This means that parties can appear before a variety of justices throughout the course of their litigation. Additionally, many interim applications involve justices making decisions in very short periods of time with no prior knowledge of the parties or their family circumstances, and lawyers have to spend time providing the court with background information at each appearance.
  5. Confidentiality – Mediation/Arbitration sessions are private, as are the communications, documentation and notes made in the course of mediation. Litigation involves public court appearances, and documentation and evidence are a matter of public record, accessible by anyone.
  6. Flexibility – Mediator/Arbitrators schedule sessions in consultation with the parties and are willing to work around work, travel and vacation schedules. Litigation and court appearances are not flexible or accommodating.

While it is up to the separating parties to choose the method by which they wish to resolve their dispute, in our opinion, mediation/arbitration is quick and efficient, and may be preferable to attending at court when a resolution cannot be quickly and easily achieved.

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