Understanding Mediation & Arbitration in Family Law

Mediation, Arbitration, and Med-Arb in Family Law

The dissolution of a marriage or the termination of a domestic partnership can be a complex and emotionally charged process. In navigating the legal intricacies of property division, child custody, and spousal support, many couples seek alternative dispute resolution (ADR) methods to mitigate the stress and expense of traditional litigation. Mediation and arbitration are two prominent ADR options, with “med-arb” emerging as a hybrid approach.

Mediation: A Collaborative Process

Mediation is a voluntary process involving a neutral third party (the mediator) who facilitates communication and negotiation between the parties. The mediator does not impose decisions but assists the parties in reaching a mutually agreeable settlement.

The mediation process typically begins with an initial joint session where the mediator outlines the process and ground rules. Subsequent sessions may be conducted jointly or individually. The mediator helps the parties identify issues, clarify priorities, and explore potential solutions throughout the process. The mediator's role is to create a safe and supportive environment where open communication can flourish. Lawyers are often involved in advising their clients during this process.

A key advantage of mediation is its potential to preserve relationships. In focusing on collaborative problem-solving, mediation can help parties maintain a respectful dialogue, especially when children are involved. Mediation also offers flexibility and control, allowing the parties to create tailored agreements that address their specific needs and circumstances.

Arbitration: A Quasi-Judicial Process

Unlike mediation, arbitration is a more formal process that involves a neutral third party, the arbitrator, acting as a private judge. Qualifications for arbitrators vary by state—in Washington State, arbitrators must be retired judges or members of the state bar who have been admitted for at least five years.

The arbitrator hears evidence and arguments from both parties and then renders a binding decision. Arbitration is often used to resolve specific issues in a divorce settlement where the parties cannot agree but wish to avoid going to court. While arbitration can be quicker and less expensive than litigation, the parties relinquish decision-making authority to the arbitrator.

The arbitration process typically involves pre-hearing conferences, document exchange, and the presentation of evidence. The arbitrator may also conduct site visits or hear testimony from witnesses. Once the hearing is concluded, the arbitrator issues a written award outlining the terms of the agreement. The arbitrator's decision is generally binding, limiting the parties’ options for appeal.

Med-Arb: A Hybrid Approach

Med-arb combines elements of both mediation and arbitration. The process begins with a mediation phase, where the parties attempt to reach a settlement with the assistance of a mediator. If mediation is unsuccessful, the process transitions to arbitration, and the mediator assumes the role of arbitrator.

Med-arb offers several potential benefits. It allows the parties to explore settlement options without the pressure of a formal hearing. If mediation fails, the process can seamlessly transition to arbitration without the need to start anew. Additionally, the arbitrator, having participated in the mediation process, may have a deeper understanding of the parties' issues and priorities.

However, med-arb also presents challenges. The parties must be prepared for the possibility of the process shifting from a collaborative to an adversarial mode. Moreover, the mediator-turned-arbitrator must carefully manage potential conflicts of interest.

Legal Guidance for Mediation and Arbitration

If you are considering divorce, your attorney can help you decide which process is right for you and your case. McKinley Irvin’s team of family law attorneys are experienced in using these dispute resolution tools to help their clients reach a successful settlement that minimizes conflict. Several attorneys at our firm are also skilled mediators and arbitrators. If you would like to discuss any of these options with our firm, please get in touch.