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What Is the Difference Between Mediation, Arbitration, and Litigation?

When contemplating divorce, it's important to understand the different ways you can go about resolving any settlement disputes. Mediation, arbitration, and litigation are all options, each with its own advantages and disadvantages. 

What is divorce mediation?

Divorce mediation is a process where both parties in the divorce meet with a mediator. The mediator is a neutral third party tasked with facilitating communication between the two parties. 

A divorce mediator does not make any marital settlement decisions for the couple. Rather, they help the couple come to an agreement on their own. This agreement is then put into writing and legally binding. 

One of the benefits of mediation is that it allows both parties to have some control over the outcome of the divorce. It also tends to cost less and move faster than a drawn-out court process. However, both parties must be willing to cooperate and communicate with each other. 

What is divorce arbitration?

Divorce arbitration is similar to mediation in that it also involves a neutral third party. However, the arbitrator has the authority to make decisions about the divorce, and these decisions are legally binding. Arbitration can be less expensive and quicker than going to court, but each spouse must give up some control to the arbitrator. Typically arbitration is for spouses who were unable to resolve a conflict via mediation but still want to stay out of court.

What is divorce litigation?

Divorce litigation involves both parties taking their case to court and allowing a judge to make decisions about their settlement. This is often seen as a last resort because it can be so expensive and time-consuming.

It's important to note that once you go to court, you give up complete control over the outcome of your divorce, as it will be up to the judge to decide how things shake out. 

How mediation works

Let’s explore how mediation works. The first step in mediation is for the mediator to meet with each spouse separately. This helps the mediator understand each person's side of the story. 

Then, the mediator brings the couple together and talks through their issues. The mediator may help them brainstorm solutions or offer suggestions, but ultimately, it is up to the couple to decide what to do. 

Consider Jeff and Karen. They’ve been married for 10 years and have issues effectively communicating with one another. They’re both looking to end the marriage but are unable to speak amicably.

They agree to hire a mediator, who meets with each of them individually to discuss their divorce priorities. After the individual meetings, the mediator brings Jeff and Karen into the same room and highlights their commonalities. Through this approach, the mediator initiates a conversation where Jeff and Karen can discuss how to split their marital property objectively and without animosity.

How arbitration works

Let’s continue with Jeff and Karen, but this time, let’s see how things play out through arbitration. Jeff and Karen each have valid points they want the other to hear, especially those related to their two young children.

The arbitrator helps each person understand the other's perspective and find common ground. After a few sessions, Jeff and Karen reach an agreement on joint custody of their children and how their property will be divided. 

Without arbitration, Jeff and Karen might have ended up in court, which would have been more expensive and time-consuming. It also would have been more challenging with their work schedules and childcare arrangements. Arbitration allowed them to work through their issues in a confidential setting without airing their “dirty laundry” in public. 

How litigation works

If Jeff and Karen can’t agree on any or all of their divorce terms in mediation or arbitration, they’ll head to court

Because litigation adds extra stress and cost to a divorce, the standard goal is to avoid it as much as possible. But since Jeff and Karen simply cannot agree on terms, a judge will decide for them. 

In litigation, each spouse must present their case for why the judge should agree with their request for marital property distribution. That said, courts are required to follow specific guidelines, so neither Jeff nor Karen may get exactly what they want.

How Hello Divorce helps spouses resolve divorce conflicts

Hello Divorce offers compassionate support and guidance to divorcing couples. Whether your divorce is an idea in your head, at the mediation or arbitration stage, or heading toward litigation, consider our platform, and take 15 minutes to learn from one of our account coordinators what we can do for you. You can schedule your free introductory phone call here.