Mediation vs. Arbitration in a Divorce

  •   |   Meghan Freed

Updated December 3, 2023

There is no one-size-fits-all approach to divorce. You have many options for handling your divorce, including mediation and arbitration. Making the right choices can make a significant difference in your future. For example, a high-conflict divorce can take many months (or even years) to resolve. In many high-conflict divorces, the spouses cannot reach settlement agreements outside of court, which can lead to waiting for court dates, plus significant court time and associated attorneys’ fees.

To avoid this, many spouses choose to work together through mediation or arbitration to try to de-escalate conflict and reach resolutions outside of court. Mediation and arbitration are two common alternatives to traditional court proceedings. Our divorce lawyers work with you to identify the best approach for you based on your future goals. Whether you are seeking a peaceful resolution or a binding decision, we will shed light on the benefits and drawbacks of mediation vs. arbitration, empowering you to make an informed choice that will set the stage for a brighter future.

How Does Mediation Work?

Mediation is a non-adversarial process where a neutral third party, known as a mediator, helps divorcing couples reach a mutually satisfactory agreement. The mediator facilitates communication and negotiation between the parties, guiding them toward finding common ground and resolving conflicts. Unlike a judge in a courtroom, a mediator does not make decisions or impose settlements. Instead, they assist the couple in exploring options and finding solutions that work for both parties.

Mediation has two primary applications in Connecticut divorce proceedings.

The first mediation application is a divorce process that provides a holistic alternative to litigation. In other words, instead of filing their divorce with the court, the couple retains a mediator to help them reach an agreement on their own, outside of court. The mediator doesn’t represent either spouse. Instead, the mediator guides the conversation so the couple can create a divorce plan that works for their family. The mediator doesn’t give legal advice but may suggest how a court might view certain situations or agreements. After the spouses reach an agreement, the mediator prepares a written draft for them to review with their individual attorneys – who we often call “mediation review counsel.” The attorney serving as each spouse’s mediation review counsel does provide their client with independent legal advice about the agreements reached during mediation.

The second application of mediation in the divorce context happens as one component of a litigated divorce. In those cases, mediation is a settlement tool to resolve the remaining issues. This typically occurs toward the end of negotiations to either avoid a divorce trial or narrow the issues the judge must decide at trial.

Read: What Is Mediation in Divorce?

Advantages of Mediation

One of the key advantages of mediation is its focus on collaboration and maintaining a positive relationship between the divorcing spouses. By encouraging open communication and understanding, mediation can help reduce conflict and promote a more amicable divorce. Additionally, mediation allows the couple to have more control over the outcome of their case, as they are the decision-makers. This can lead to more personalized and creative solutions that meet both parties’ unique needs and priorities.

However, it’s important to note that mediation isn’t the best option for all divorce cases. In situations where there is a significant power imbalance, a lack of candor, a history of domestic violence, or an inability to communicate effectively, even with the assistance of a mediator, mediation may not be the best option. It’s crucial to assess the dynamics of your relationship and consult with a qualified professional to determine if mediation is right for you.

Read: How to Have an Amicable Divorce

How Does Arbitration Work?

As with the second mediation application described above, arbitration typically occurs in a litigated divorce. The spouses select an arbitrator to help them resolve issues without a judge. Unlike a mediator, who helps the couple reach their own agreements, an arbitrator decides on the spouses’ behalf. In other words, like a judge, but outside of court. The spouses agree to be bound by the arbitrator’s decision.

Arbitration is most often used to resolve more minor financial disputes when the spouses can’t agree – such as dividing personal property like furniture. That said, Connecticut now allows arbitrators to decide issues beyond the financial – including child custody and visitation.

Read: Arbitration & Divorce

Advantages of Arbitration

Some couples choose arbitration for its timeliness. One of the main advantages of arbitration is its efficiency and speed. Unlike traditional litigation, which can take months or even years to resolve, arbitration allows for a more streamlined process. For example, arbitrators may have more availability than divorce court judges so that they can be seen sooner. It’s also important to know that many cases take multiple arbitration sessions or court hearings to resolve. Arbitration sessions are more likely to occur on consecutive days. In contrast, multiple court days might be spread across weeks or months. In other words, the couple can schedule arbitration sessions at their convenience, avoiding the delays associated with court backlogs.

Arbitration’s additional advantage is that spouses can also choose the arbitrator who will hear their dispute, but they cannot select the judge in litigation. Plus, arbitration offers more privacy than a contested hearing, as the proceedings are generally confidential and not part of the public record.

However, it’s also important to consider the potential drawbacks of arbitration. Since the arbitrator makes the final decision, the couple has less control over the outcome of their case than they would in mediation. This can be a disadvantage if you feel strongly about specific issues and want a say in decision-making.

Read: Unveiling the Role of a Family Lawyer

Similarities in Mediation vs. Arbitration

Arbitration and mediation are both forms of alternative dispute resolution or “ADR.” In other words, they are both private ways to try to reach an agreement on your divorce outside of court.

  • Opting in: Both spouses must agree to use mediation or arbitration to resolve their divorce.
  • Selection: Regardless of their chosen method, the couple must agree to the mediator or arbitrator and how to cover their fees.
  • Fees: Where you do not pay the judge in your litigated divorce, you pay your private mediator or arbitrator. This does not necessarily mean that the fees in ADR are less expensive overall than in a contested divorce. The opposite is often true.
  • Timing: Mediation and arbitration are more within the spouse’s control than when the court is involved.
  • The sessions are confidential in private mediation and not part of the public record. This is most often also the case in divorce arbitration. In both cases, the divorce agreement that you reach will be entered with the court for review and approval and will become part of the public record.

Read: Understanding the Divorce Process

Critical Differences Between Mediation vs. Arbitration

While both mediation and arbitration aim to resolve disputes outside of the courtroom, two key differences set them apart. Understanding these differences can help you determine the most suitable approach for your divorce settlement.

  • Decision-making authority: In mediation, the couple retains control over the decisions and ultimately decides the terms of their settlement. In arbitration, the spouses give the arbitrator the authority to make binding decisions that the couple must follow. This is similar to when a judge decides in litigation, except that the spouses agree to hire and pay the arbitrator.
  • Level of structure: Mediation is generally less formal than arbitration, focusing on open communication and collaboration. Arbitration follows a more structured process, closer to but less formal than a courtroom setting.

Read: Benefits of Divorce Mediation

Call Freed Marcroft if You Are Considering Mediation or Arbitration for Your Divorce

Choosing between mediation vs. arbitration for your divorce settlement is a significant decision that requires careful consideration. The family lawyers at Freed Marcroft are skilled in all types of divorces, including mediation, litigation, and collaborative divorce, and help you make an informed choice that aligns with your needs and priorities. Learn more about your options by scheduling a consultation today.

Freed Marcroft LLC

Freed Marcroft LLC