Despite how popular culture and the media portray divorce, not every split has to end with a messy courtroom battle. Most couples in California, in fact, can successfully reach divorce settlements without going to trial at all. These couples use mediation or arbitration to work through the elements of their divorces without a judge’s intervention. Compromising on the factors of your divorce during mediation or arbitration could save you time, stress and money. Learn the difference between these two popular alternatives to traditional divorce litigation to decide which might be best for your family.
Divorce Mediation in California
Divorce mediation is a process in which a mediator – an unbiased third-party – will listen to both you and your ex-spouse’s arguments or concerns and help you compromise on the terms of your divorce. The mediator will not serve as a judge and will have no say in the final terms of the settlement. Instead, the mediator is there simply to help facilitate an open, honest and respectful conversation between you and your ex-spouse.
The decisions you and your ex-spouse make during mediation are not binding. It will ultimately be up to the two of you to turn your compromises into enforceable divorce terms by submitting them to a court judge for approval. Most mediation sessions involve just one mediator, both parties in the divorce and each party’s attorney if desired. It is up to you and your ex-spouse whether or not to hire attorneys to help during mediation.
Arbitration is similar to mediation in that it does not involve a courtroom, divorce trial or litigation. It does, however, involve a judge’s decision on your case. Arbitration replaces the full trial process with multiple people (a panel) who will serve as judges. Most arbitration sessions use three chosen people, or arbitrators, to make decisions about your divorce based on a majority vote. Arbitration can be as formal or informal as you desire.
During arbitration, you and your spouse will each state your cases, with or without legal representatives, along with evidence to support your argument. The panel of judges will listen to both sides and decide things such as asset division, spousal support, child custody and child support. Unlike a divorce trial, however, you will retain some control over the decisions the judges make. You will have the chance to negotiate the terms of the divorce, as will your spouse, during arbitration.
Mediation or Arbitration Versus Litigation
Both mediation and arbitration use trained leaders to help walk you and your ex-spouse through important decisions such as creating a parenting plan or dividing assets. This can prove beneficial if you have trouble making decisions or compromising with your ex-spouse. Your mediator or arbitrator will not take sides or be partial to you or your ex-spouse during the legal process.
Both processes are more private than divorce court, which is open to the public and will become part of public record. Both processes are also generally shorter than a full-blown divorce trial, as well as less expensive for the parties involved. Mediation is the most popular way to resolve a divorce, followed by arbitration then litigation.
When deciding which process is best for you, consider you and your ex-spouse’s abilities to communicate with one another. Many couples try to make decisions together through mediation first, in case compromise is possible with help from a third-party mediator. If mediation fails, the couple may then move to arbitration and/or litigation. If you wish to maintain more control over the final terms of your divorce, try for mediation. If you need a professional to intervene, arbitration might be the better choice. Speak to a divorce lawyer for more information about the pros and cons of each process.