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Frequently Asked Questions:
Mediation and Arbitration


by Elayne B. Kesselman, Esq.

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    What is divorce mediation?

    Divorce mediation is a process whereby you and your spouse meet with an individual, the mediator, for as long as necessary to identify and resolve the issues existing between you. A mediator can be a lawyer, but usually does not provide legal advice. Once an agreement is reached, the mediator writes it up, and may recommend that each of you take it to a lawyer for review.

    Who should use a divorce mediator?

    Divorce mediation seems most useful for couples who are very much in agreement on how they want to resolve the issues in their marriage (custody, support, property distribution), but who have some disputes and do not want to use lawyers for fear the lawyers may make the case more difficult or expensive than it need be. Mediation works for couples who have gotten along during the marriage, and are in agreement about becoming divorced. In addition, it works best for couples who are each fully aware of the income, assets and expenses of the other.

    Does an attorney play any role in the divorce mediation process?

    Some divorce mediator are attorneys, but it is best for each spouse to have an attorney, independent of the mediator, review the agreement the parties and their divorce mediators have reached, just to be sure that no areas have been overlooked. In addition, because many mediators are not lawyers, a lawyer might still be needed to draft the legal documents the local court that grants divorces requires to process a divorce.

    What qualities should I look for in a mediator?

    Many states do not have licensing requirements for mediators, so be sure, either through references or by interviewing the mediator, that he is qualified. Courses taken, number of cases handled to agreement, references the mediator is willing to give can all be helpful in evaluating the mediator's competence. At a minimum, the mediator must be familiar with the matrimonial law of your state.

    As with a lawyer, you should feel comfortable with the mediator. Your spouse must feel comfortable as well. Mediation has a better chance of success if you both feel the same way about the mediator. Avoid using a well meaning, however qualified, friend.

    How much does a divorce mediator cost?

    Some divorce mediators have a set fee for all sessions, from inception to agreement. Others, like lawyers, charge an hourly rate. Be sure this information is provided to you and your spouse before you hire a mediator, and that it is in writing. Make sure you and your spouse have agreed, in writing, on how the mediator's fees will be paid. Like some lawyers, some mediators require an advance fee to be paid before any work is undertaken.

    Isn't divorce mediation cheaper than going to lawyers?

    Not necessarily. While a divorce mediator may charge you less than a lawyer would, you and your spouse should each still have a lawyer (not the same lawyer) review the mediated agreement you have reached. That means you will be paying the mediator and two lawyers, rather than just two lawyers, if you had not gone to the mediator. However, you may save money because the lawyers' work should be minimized as a result of the work the mediator already did.

    In other words, you may be paying three people, but the total fees may be less than if you had paid two. Still, they could be more. Try to estimate how much it would cost to have lawyers handle a relatively simple case first, and then compare that with adding a mediator.

    What are the disadvantages of divorce mediation?

    First, even if a lawyer does not go to court, reality is that he can to obtain a court order to compel the other party to do something. In contrast, divorce mediators do not have the authority of a judge behind them, and therefore lack any power to make binding demands on either party. Thus, the success of mediation depends entirely on the cooperation of the parties. Similarly, the mediator has no way to compel either party to do anything, such as reveal income or assets, within a reasonable period of time.

    Second, one spouse sometimes perceives the mediator as favoring the other, and when this happens, the likelihood of reaching an agreement with the mediator diminishes.

    Third, a mediator may not advise you fully of the law, and the possibility exists that you will reach an agreement unaware of rights you have lost.

    Next, a mediated agreement should still be reviewed by a lawyer for each side.That is why there is a possibility that mediation can be more costly than a settlement with only lawyers.

    Finally, there is no mediator/client privilege. That means that what you disclose to the mediator is not confidential.

    What is arbitration?

    Arbitration is the process whereby an arbitrator resolves the issues existing between you and your spouse following a proceeding that is conducted very much like a hearing or a trial. Arbitration is usually binding, which means that neither party can appeal the arbitrator's decision.

    How is arbitration different from a trial?

    The outcome of a trial can usually be appealed. Arbitration usually cannot be appealed. Arbitration is usually less formal than a trial--the rules of evidence may or may not be followed, depending on what rules everyone agrees to. An arbitrator can be more flexible than a judge, because before the arbitration begins, both sides can agree to what rules the arbitrator is to follow.

    When is arbitration useful?

    In a divorce, arbitration can be useful in cases that have been prolonged because of court schedules, provided disclosure of marital assets and income is complete. Use of an arbitrator may cut short the waiting period to have a case tried by years.

    If the arbitrator's decision cannot be appealed, why would anyone use an arbitrator?

    Some divorces become very prolonged and expensive, and arbitration becomes a means to stop what seems to be ceaseless litigation. Spouses who have been involved in literally years of litigation may welcome the chance to have their case heard, once and for all, and may have no intention of appealing the outcome, no matter what the result. Selection of a respected, knowledgeable arbitrator insures that results will be fair.

    In addition, all the issues in a case except one--for example, support--may be resolved, and the parties may want to move the case along by having an arbitrator decide this final issue.

    Finally, issues that arise after a divorce, which must be resolved within a certain period of time, such as payment of a child's college tuition, might be resolved more quickly by an arbitrator.

    How do you select an arbitrator?

    The attorneys for each party will usually agree on someone to arbitrate the case. The individual may be a matrimonial lawyer or a former judge, and certainly should be very familiar with matrimonial law. Unlike a judge, arbitrators are paid by the parties, not by the government. The issue of who will pay for the arbitrator should be resolved before the arbitration begins.

    How is arbitration different from mediation?

    Unlike a mediator, an arbitrator plays no role in trying to get the parties to resolve the case. Her job is to hear the case. However, like some judges, an arbitrator, before hearing the case, may try to convince both sides to settle based upon what she knows of the case up to that point. This is different from working with the parties to identify and come to mutual agreement about issues.