The Difference Between Mediation and Arbitration

Written by Carpenter Family Law On September 2, 2018

The difference between mediation and arbitration

Mediation and arbitration are often confused for each other.

Both are effective ways to resolve disputes outside of the courts, and preferable in family law situations where children are involved.

What’s the difference and how can they help your family come to a fair and equitable resolution in cases of divorce and separation?

Mediation is…

Mediation is a negotiation between the disputed parties.

Why do you need a lawyer in a mediation agreement? For impartial assistance.

A mediator has no decision making power in your dispute, but rather participates to assist you and your ex move forward in a normally difficult and occasionally contentious discussion.

Mediation offers an informal environment for you and your ex to hash out the look of your new family arrangement. The role of the mediator is not to make a decision, but facilitate communication and sharing of information. Because of its informal environment, the agreement is not legally binding.

Mediation is perfect if you and your ex are still on good terms and willing to work together for the benefit of the children. It’s right for divorcing or separating couples who maintain good relations with each other and have full confidence neither parent will take advantage of the good faith of the other.

In situations where communication in the relationship has totally broken down and the ability to maintain agreed terms in good faith are uncertain, arbitration is the better choice.

Arbitration is…

Arbitration is governed by the Commercial Arbitration Act, and is legally binding.

Arbitration is a way to solve a dispute through a formal and rigorous process, ensuring the fairest possible outcome when former partners struggle to find middle ground.

It is a more cost effective option than taking your divorce or separation arrangement to court. The arbitrator uses evidence and questioning to come to a decision.

The final decision is legal and binding, just like taking your ex-partner to court, so there can be no diverging from the conditions agreed on in the end.

A consideration in arbitration is that because it’s a more formal process than mediation, it is time consuming. If there is a lack of cooperation between partners, which there usually is in arbitration, the process will take even longer.

What is best for your divorce or separation?

We encourage partners who still maintain civil communication to engage in mediation.

It’s a faster and more inclusive process, and starts your family off on the right foot moving forward into a separated or divorced situation.

It sets the tone for ongoing positive relations and communication between partners, even though you can’t maintain a married relationship.

It’s also the least impactful option for your children. They won’t be dragged through difficult court or mediation proceedings – an important factor as they adjust to the new family arrangement.

If you aren’t sure which form makes the most sense for your family, give us a call. Mediation and arbitration are both better options than litigation. We can help you find the best solution for your future and the future lives of your children

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