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 one in the same, they actually use very different approaches.
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.
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.
Phone: (212) 472-8626