Mediation and Arbitration

Before entering into mediation or arbitration, you need to know the difference between them. In arbitration and mediation, a neutral third party is used. But this is where the similarities end. In arbitration, both husband and wife agree to give the arbitrator the power to decide the dispute as a judge would. In binding arbitration, you agree beforehand to abide by the decision as if it were law. In straight arbitration, if you don't like it, you can go elsewhere.

The purpose of mediation is for both husband and wife to come to a mutually acceptable settlement. The mediator does no individual counseling, and is limited to gathering data, setting the ground rules, and keeping both parties on track. Throughout mediation, alternative solutions are offered, issues are clarified, and a settlement is arrived at. If you and your spouse are communicating, then mediation should be explored.

Mediation as a Choice

Mediation doesn't eliminate your need for a competent lawyer. It does require voluntary participation of both husband and wife.

Mediators can be retired or active family law commissioners or judges, a lawyer who is skilled in family law, or a lawyer who is skilled in family law and has some counseling background. Mediators can also be psychologists or other professionals who have been trained in mediation.

Gary Friedman is a lawyer and director of the Center for Mediation in Law, located in Mill Valley, California. His book, A Guide to Divorce Mediation (Workman Publishing, 1993) is one of the best on the market today. Since the early 1980s, he has trained thousands of lawyers in the skills of mediation. When we first spoke with him, we asked if one of the objectives of mediation was to attempt to get couples through the divorce process with the least amount of pain. His response was, "In many ways, mediation is more painful than divorce because you face each other directly. You experience conflict in a very intense way, so that in terms of what you go through, many times mediation is harder. Mediation is a face-to-face situation -- both parties often hear things they don't want to hear."

He stated that plenty of lawyers support the mediation process but added that many only pay lip service to it. "Most lawyers are quite attached to law as the standard to be used in determining how people should decide their disputes and don't believe that such a thing as fairness exists," he said. "When mediation is brought up, many lawyers are very cynical about it."

Why? Money is one good reason. Mediation costs a fraction of what it would for standard lawyers to work out the settlement. It is charged on an hourly basis and it usually takes from four to ten sessions for couples to get through the whole process. Friedman said that the best lawyers and the most competent divorce lawyers have no problems when their clients participate in mediation. In fact, they actually encourage them to do it, know how to support them as they go through the process, and encourage them to come back and consult. "This way, the husband and wife have the protection of their lawyers and, at the same time, the ability to control the decisions that are made in meetings face-to-face with spouse," he said.

This is not to say that lawyers have no place in mediation; the contrary is true. A good lawyer will help you guard against one of the dangers of mediation - that this more informal approach could miss or inappropriately value properties that are divided in the marital settlement. Before you sign any agreements that come out of mediation, have them reviewed to determine whether they represent your best interests.

The bottom line is that no single person has all the answers and any answers he or she offers will often be muddy. Some type of compromise may well be the only solution . In reviewing our files of men and women who achieved successful divorces - from which they came away with their self-esteem intact and a reasonable property settlement - we noticed two key similarities:  They had a nonadversarial lawyer representing each side and they kept channels of communication open.

How to Make Mediation Work

Obviously the selection of the mediator is critical if this process is to be given a chance to work. An experienced divorce lawyer (another time when experience counts) in a metropolitan area will know a variety of mediators with varying backgrounds and strengths. Get recommendations from your lawyer before you turn to other sources.

You may be thinking, "I bet my lawyer does not want the mediation to work because he will make a lot more money if we cannot settle." Again, the better lawyers would be pleased to see their clients avoid the trauma of a contested divorce. These top-notch lawyers want what is best for their clients.

Mediators come from different professions: mental health, financial planning, law, or social work. Most important, however, the person must have training in mediation, and be knowledgeable about issues confronted in a divorce.

You'll also want to focus on the mediator's style, and decide which will work best for your situation. Some will simply be a third party to facilitate communications as you and your spouse sort through issues. Others will provide advice about particular issues such as child custody or property division. And still others will assist the parties in working through some of the emotional issues of divorce.

In shopping for a mediator, ask the following questions:

1. Do you specialize in family law?

2. How many mediation cases have you handled in the past 12 months?

3. How long have you been a mediator?

4. What kind of training do you have?

5. Do you have any certifications?

6. What is your professional background?

7. How much do you charge and how do you bill?

8. Do you see the parties individually or only as a couple?

9. What is your schedule like for the next two weeks?

10. What guidelines or checklists do you use to make sure you address all issues?

11. Are you aware of how courts in this country resolve certain issues such as child custody and spousal support, and does that influence you?

A goal of the mediation process is to draft the outline of a settlement. The parties will then have a lawyer take the outline and prepare a formal separation agreement based on the terms of the mediation. If you are using only your spouse's lawyer in your case, seek a second opinion from your own lawyer. Have this lawyer explain the pros and cons and significance of each provision. Remember, you will have to live with this the rest of your life.

Arbitration

Arbitration is another tool for avoiding lengthy and expensive litigation. An arbitrator acts as your own private judge who conducts a "mini-trial" of sorts, in which the parties and their lawyers present their cases. Arbitration is used more in some areas than in others, and can be particularly attractive if you live in an area with a huge backlog of cases. If you agree in advance to what is called binding arbitration, the arbitrator's decisions are final and become a court order just as if you had gone before a judge. On the other hand, you can agree that the decision of the arbitrator is only "advisory," in which case you would not be required to follow his or her decision.

An arbitrator can be used for the entire process or only to resolve certain issues. The arbitrator may even offer a combination approach, mediating initially, but making a decision for you if you cannot agree.

Shop for an arbitrator in the same way as you would for a mediator, but you will find that it is rare that an arbitrator is not a lawyer. Retired judges frequently open arbitration practices. If this is something you want to consider, ask your lawyer to recommend some good arbitrators.

In some jurisdictions the court, upon request, will approve a lawyer to act as what is called a "special master" to get past a problem area. This appointed lawyer usually will have a particular area of expertise, such as the division of pensions. Again, your lawyer should play a significant role in deciding whether to use a special master and who that person should be.

We are not thrilled when we hear that divorcing couples are gearing up for a courtroom encounter. It's rare for both sides to come out of the courtroom content with the aftermath of a divorce. If you feel that you may be caught up in someone else's agenda - yes, lawyers sometimes do not act in your best interest - consider strongly getting a second opinion and input from one of the experts identified here.

Points to ponder:

Be sure you understand whether the arbitrator's decision will be binding or only advisory.

There is no lawyer-client privilege with a mediator, arbitrator, or special master, so anything you say could come out in court.