I received a call last night from a friend who for many years worked on the floor of the New York Stock Exchange. He had just read my most recent newsletter about the “12 mistakes to avoid when considering separation or divorce” and he wanted to know the difference between arbitration and mediation.
As I explained to my friend, although an arbitrator and a mediator may seem to be the same, they actually use very different approaches.
arbitration
An arbitrator acts like a judge. When a couple is unable to come to an agreement, the arbitrator, with minimal knowledge about their lives, makes the decisions for them based on the information he is given during the arbitration. Parties usually have separate attorneys and each party gets an opportunity to present his/her position to the arbitrator. Unlike what many people may imagine, this is a highly adversarial process, and though it may appear like a more informal approach than going to court in the traditional way, this process will take much time, cost a lot of money and the arbitrator’s decision will be binding.
mediation
A mediator is neutral and facilitates the dialogue between the spouses so that they can make their own decisions. The mediator helps the parties explore possible options to their issues and look at the advantages and disadvantages of their choices so that they can better decide what works best for them and their family. Each spouse may choose to consult with an attorney during and at the end of the process before signing their agreement which then becomes binding.
In the financial world, arbitration has been the traditional mechanism provided by a stock exchange to resolve disputes between the trading members and their clients in respect to trades done on the exchange. One day might disputants start exploring mediation as an alternative way to resolve their conflicts?
Certainly in the world of family and divorce, mediation should be considered as the first option. All members of the family including the children benefit from this approach.
Arbitration may be considered in divorce but only as a last resort and only in very high conflict cases where all other possibilities have been explored and proven to be unsuccessful.
I encourage you to visit my website to learn more about the mediation process and if you have further questions, please give me a call! I am always thrilled to talk about mediation.
Please feel free to ask any questions, to comment, or to request more information in the Comments Box below. Do you know a friend or colleague whom you feel would find this blog relevant? Please feel free to forward it to them.
Jennifer Safian
divorce and family mediation
upper east side of manhattan (nyc)
new york, ny
(917) 881 5206
jpsafian@gmail.com
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yea, in mediation, the mediator takes charge of the process and the parties make their decisions through the developing of options however, in arbitration although the parties are free to choose the arbitrators n the procedure, the arbitrator makes the decisions for the parties and the award they come out with is binding and not subject to appeal. the award can only be set aside on certain grounds like fraud, misrepresentation etc. thank you
in this regard it is always advisable to go for meediation because although a divorce may be effected it still helps to maintain or preserve the relationships between the parties. its also less expensive and informal unlike arbitration which is very expensive and time consuming. expensive in the sense that parties for example bear the cost of the arbitrator’s fees.