Divorce Arbitration and Mediation – Pros and Cons

One of the less well-known ways to deal with areas of dispute in a divorce is to arrange for them to be arbitrated. Arbitration involves the appointment of an arbitrator agreed upon by the parties to the dispute and has the advantage of being a process that provides secrecy and a certain outcome. It is also normally faster than alternative methods of settling disagreements, such as court proceedings or mediation – although the latter can also normally be carried out quickly with the willingness of both sides. It is also usually a low-cost method of achieving resolution of a dispute.

The arbitrator must be professionally qualified and, on appointment, will direct the parties as to the evidence required to be presented and set a timetable for the arbitration. The arbitrator’s decision will be binding on both sides and will be upheld by the court unless there are clear grounds on which it should be contested.

One disadvantage of arbitration is that it is by no means uncommon for one or other party to be dissatisfied with the arbitrator’s decision.

Where divorcing couples choose mediation as an alternative way of resolving disputed issues, they first agree a ‘participation agreement’ and then work together with their legal representatives to agree a settlement, without the delay and expense of settling their differences in court. If a mediation fails to achieve a settlement, recourse can be made to court proceedings.

Key to controlling costs in a mediation is ensuring that meetings are not allowed to proliferate. The mediator will meet with each side separately to obtain an understanding of their position, but the negotiations are attended by both the participants and their legal advisers, which can prove expensive unless a tight rein is held over the issues discussed and the level of detail considered. Mediation is probably best used when the matters under discussion are relatively straightforward.

It is also possible to mediate some aspects of the settlement and to have other aspects dealt with by court proceedings or arbitration.