Mediation vs. Arbitration: Finding Common Ground vs. Deciding a Winner

Both mediation and arbitration are forms of resolving conflicts or legal issues (also called alternative dispute resolution) that offer options outside the traditional courtroom battle. The litigation process is time-consuming and costly. Parties seeking a faster, more cost-effective resolution of their legal dispute may consider ADR. Most couples in California can successfully reach a divorce settlement without going to trial at all, with the assistance of an experienced mediator or arbitrator. Resolving your dispute outside of court can save you time, stress, and money. But while they share the goal of resolving conflicts, mediation and arbitration take very different approaches. Learn the difference between these two popular alternatives to traditional divorce litigation to decide which might be best for your family:

Who Makes the Call?

  • Mediation: In mediation, a neutral third party, the mediator, listens to each party’s arguments and concerns, and facilitates communication between the disagreeing parties. Mediators do not make decisions but guide the conversation toward a mutually agreeable resolution. A mediator helps each side understand the other and find common ground. The mediator will not serve as a judge and will have no say in the final terms of settlement. The decisions parties make during mediation are not binding, until executes and submits a written agreement to the court for approval.
  • Arbitration: An arbitrator acts more like a judge. Arbitrators listen to presentations from both sides, consider evidence, and then issue a binding decision (usually in writing). The arbitrator’s decision is usually final and enforceable in court, similar to a judge’s ruling.

Focus and Formality:

  • Mediation: The focus is on open communication and compromise. Mediation is typically less formal than court, allowing for a more flexible and collaborative environment. Parties can attend mediation, with or without legal representation.
  • Arbitration: Arbitration is similar to mediation in that it does not involve a courtroom or litigation, and it allows both parties an opportunity to negotiate the terms of a resolution outside of court. The approach is typically more formal, with rules of evidence and procedures like a courtroom setting. Parties may present oral arguments and witnesses to support their case. Parties can participate in arbitration, with or without legal representation.

Choosing Your Path:

  • Mediation: A good option if you wish to maintain more control over the final terms of your divorce. Also consider mediation when preserving a relationship is important, such as with a spouse/co-parent, business partner, or neighbor. It is also often faster and less expensive than arbitration or litigation.
  • Arbitration: Consider arbitration if a clear decision is needed and both parties agree to be bound by it. It can be quicker and less costly than court, but generally, there’s no opportunity to appeal the arbitrator’s decision.

Benefits of ADR Over Litigation?

  • ADR protects the parties’ privacy and confidentiality compared to litigation in court, which is open to the public and will become part of the public record
  • ADR is generally shorter and more efficient than preparing for and proceeding to a full trial in court
  • ADR is generally less expensive for the parties, reducing legal fees through fewer court hearings, filing deadlines and billable hours
  • ADR promotes resolution by encouraging flexible, out-of-the-box dispute resolution
  • ADR eases the burden on the legal system by avoiding litigation

Ultimately, the best choice depends on your specific situation and goals. Consider your ability to communicate with one another. Many couples try to reach agreements through mediation first, and if mediation fails, then you may move to arbitration or litigation. If you’re unsure, consulting with an attorney can help you navigate the options and determine the best path forward.