Resolving Disputes Through Mediation or Arbitration
Mediation and arbitration can be a great way to solve traditional legal disputes and can be a less expensive, quicker and more pleasant process than litigation. Mediation and arbitration are considered an informal proceeding in the sense that the parties are not situated in a courtroom with evidence and testimony being presented on the record. These alternatives are not exactly the same and it is important to understand the difference. Mediation has a trained independent third party with no stake in the outcome of the litigation, who will meet with the parties and/or your attorneys to discuss the issues in dispute and to consider ways in which to resolve any disagreements the parties may have to the satisfaction of the parties. It is focused on finding the middle ground that will serve both parties and settle a dispute. Although the parties may not be in a “courtroom setting,” the results of a mediation will be just as legally binding as if the parties actually appeared before a judge. Mediation is really a procedure whose objective is to have the parties’ fashion their own solutions to their disputes, rather than relying on the decision of another person (The Judge) to tell them what they must do.
Arbitration is also neutral party chosen by both sides but has a different task – in this instance, the arbitrator reviews the case and then issue a decision as to which side is right. Arbitration can be binding or nonbinding. In the former case, a party cannot appeal the decision, unless they can prove the arbiter was biased towards the opposition. In the latter, either party can disregard the arbiter and litigate.
How Does Mediation Work?
Certain lawyers have special training in mediation, which may be useful to your case. Your lawyer may be present at mediation and will protect your interests and make sure you do not agree to something unfair under the law. The opposing lawyer will do the same thing for your spouse. The mediator facilitates communication but does not represent either parties’ individual interests.
You should think of mediation as an opportunity to settle your disputes in a manner that is acceptable for you without the delay and risk involved in lengthy, expensive litigation and trial.
Can Mediation Be Used in Child Custody Cases?
Mediation is required in all cases involving custody issues. Shortly after the filing and service of the lawsuit (generally within six to eight weeks), an order will be issued by the court and the parties will be ordered to attend parent education and mediation orientation. If the parties are able to agree on a solution, the mediator will draft a document for the parties to sign. If the parties are unable to reach an agreement, the case will be closed in mediation and a trial will be scheduled to settle the custody/visitation issues.
What About Property Division in A Divorce?
In disputes involving the division of marital property and debts, a pretrial equitable distribution conference is scheduled early in the case. You and your spouse will be asked to fill out an equitable distribution affidavit shortly after your lawsuit is filed. That affidavit lists the type of property and debts, which are subject to division by the court. You will list the property and provide documentation as to the value of the various assets listed. A schedule for future conferences will be set at that initial conference and the parties and their attorneys will select a mediator and a deadline to complete the mediation prior to the final scheduling conference.
Mediation is the usual method of resolving the disputes involving property and financial issues, however, there are other methods which can be chosen instead of mediation such as arbitration and the use of a judicial settlement conference. Your attorney will assist you is determining the best method for alternative dispute resolution based on the particular facts and circumstances of your case. An equitable distribution trial will be scheduled, if you are unable to reach an agreement in mediation or any other form of dispute resolution.
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