By Divorce.com staff
Updated Dec 26, 2022
Some couples are able to communicate about all of their issues and create a divorce settlement they’re both happy with, but other couples will need more help.
There are two ways these couples can get the assistance they need. The first is through mediation, and the second is through arbitration. Both services accomplish the same goal of creating a divorce settlement, but they work in completely different ways. Each method comes with its own advantages and disadvantages.
Here’s what you should know about mediation vs arbitration before you choose which route is best for you.
What Is Mediation?
Mediation is an informal discussion and decision-making process. When you’re ready to work out the details of your divorce, you and your spouse will have a session with a mediator. A mediator is a divorce expert, usually with a legal background. The mediator will listen to you both talk about what you want and take notes.
The mediator will inform you of your options and help you work to find compromises, but the mediator themselves cannot make any decisions. They can’t require either of you to provide documents or force you to be honest. You’re not under oath when you work with a mediator, and the mediator cannot enforce consequences.
A mediator doesn’t have the ability to make any decisions for you. Anything you discuss won’t become a part of your divorce settlement unless both of you agree. Your mediator will keep track of the decisions you and your partner agree upon and write them into a document you can use for your divorce settlement.
At the end of mediation, you will have made all of the decisions yourself. These decisions aren’t binding or enforceable until you write them into your divorce settlement and are granted a divorce decree.
What Is Arbitration?
Arbitration occurs when your divorce settlement is discussed through lawyers. You and your spouse will each hire separate lawyers, and you’ll privately speak to your lawyers about how you’d like to settle your divorce. This includes matters like who keeps the house, who keeps the dog, how custody is divided, child support, and spousal support.
Your lawyer will tell you if what you want is possible. If it is, they’ll make your case for you.
Your lawyers will have conversations behind closed doors. Spouses usually aren’t present during arbitration sessions. Your lawyer will call you after the session concludes and ask for input or opinion as matters are discussed.
In some circumstances, arbitrators may be able to subpoena records. That means that one lawyer’s client will be required to provide relevant documents to the other lawyer. This prevents money or property from being concealed during the divorce process.
After your lawyers have conversed with each other and advised you of your options, you’ll come to compromises. Your lawyers will draw up paperwork that is likely legally binding. You won’t be able to take back or change any of the decisions you make in arbitration unless you file for changes through the court system.
What Are the Biggest Differences Between Mediation and Arbitration?
As we mentioned above, mediation and arbitration achieve the same goal in completely different ways. They’re both useful tools, but you need to be sure that the tool you choose is right for your situation.
Mediation is usually priced per session, and it’s one flat fee. You can split the fee with your spouse if you’d like. Most people only need a handful of mediation sessions to make compromises and important choices for their divorce. You may only need one or two hours with a mediator to complete everything you set out to accomplish.
Arbitration generally takes longer because a lawyer has to speak with you and also attend meetings with the other lawyer, and you’ll be paying your lawyer for their time.
Methods of Collecting Information
Your mediator has to trust everything you and your spouse say. They cannot force anyone to provide things like bank statements or tax returns. If someone doesn’t want to provide a document, they don’t need to.
In arbitration, an attorney has the power to legally request these documents for review. Lawyers don’t take things at face value. Any necessary document you don’t voluntarily hand over to a lawyer will undoubtedly be requested by your spouse’s lawyer. Lawyers can use subpoena power if necessary.
The Duration of the Process
If your divorce case is simple, you can complete mediation in as little as a day. It might only take an hour or two to iron out all the details with your mediator. Arbitration can take anywhere between a few months and two years. It all depends on the level of disagreement and the schedules arranged by your lawyers.
The Way You Reach a Conclusion
A mediator helps you reach a conclusion on your own terms. Lawyers argue for what they believe to be the best possible conclusion for you. Since you won’t be there to reason with your spouse and make compromises that will make sense for your situation, you may not be as satisfied with your divorce settlement.
When Should You Use Arbitration?
Arbitration can be complicated, expensive, and lengthy. There are many situations where it’s well worth the time, money, and effort. Some couples won’t be able to reach an agreement in mediation, and some couples shouldn’t even try. It all depends on the complexity of the situation and the safety of communication.
If Mediation Didn’t Work
Many people who use arbitration have already tried mediation and didn’t have success. The purpose of mediation is to be able to file for uncontested divorce, and if there’s even one issue where you don’t perfectly agree, you cannot file for uncontested divorce.
If you want to handle your divorce outside of court and mediation isn’t helping you reach a conclusion, arbitration is likely the only other option.
If Your Spouse May Lie or Hide Assets
If you can’t trust your spouse to be honest, you may need subpoena power to get access to important documents. A mediator can't help you with that. If you believe your spouse is hiding marital property or may give dishonest information, you need the help of lawyers and the court to force your spouse to tell the truth.
If It’s Unsafe To Speak With Your Spouse
Mediation only works if you and your spouse can have a conversation with each other. If your spouse is attempting to manipulate the situation or coerce you into a divorce settlement you feel is unfair, you can’t talk it out in mediation.
If your spouse is abusive or violent, you should avoid having direct discussions with them. Allowing lawyers to discuss the matter will eliminate the possibility of confrontation.
If you have documentation that supports abusive behavior directed at you or your children, it’s very important to provide that documentation to your lawyer. Your lawyer may be able to inform you of other steps you should take to keep you and your children safe during and after your divorce.
When Should You Use Mediation?
Mediation is often the path of least resistance, but you can only use it if both you and your spouse are willing to discuss your divorce without resistance. It’s often the least expensive and least stressful method of creating a divorce settlement, and you may prefer trying mediation as your first choice whenever possible.
When You and Your Spouse Can Communicate
Many divorces don’t happen at the peak of emotional tension. A lot of couples have known for a long time that divorce was imminent. If you’ve both accepted the reality, it’s much easier to have honest conversations about your situation.
Communication is very important during a divorce, especially if you have a child that you’re co-parenting. You need to work on your ability to come to compromises and understand each other. If you’re doing a good job communicating, communicate in mediation.
Talk about what’s in your mutual best interests for your divorce, and work together to create a conclusion you’re both satisfied with.
When Your Level of Disagreement is Low
If you have a prenuptial agreement or a postnuptial agreement, you’ll have very little to debate in your divorce settlement. If you don’t have an agreement, but you already see eye to eye on most issues, there’s usually no reason to get a lawyer involved.
If you only have a handful of issues you’d like to resolve, mediation is the most efficient way to do that.
When Time Is a Factor
When you’re both eager to move on with your lives, you don’t want to deal with a drawn-out divorce process. You want things done quickly, efficiently, and simply. The future is waiting. You just need to complete these last few steps before you both can go on to build happy new lives.
If you have lawyers and the court involved in your divorce, it’s going to take a long time. You’re operating on someone else’s schedule, and a lot of people need to collaborate to make your divorce happen. If you choose mediation and file for an uncontested divorce, you could be divorced in as little as two months.
When Budget Is a Factor
You and your spouse can save a lot of money utilizing mediation. You’ll be able to avoid lawyer fees and taking time off work to deal with an arbitrated divorce or a divorce through the court system. If you’d both rather save your money and use it to start your new independent lives, perhaps your similar financial goals can motivate you to become better communicators.
Making Divorce as Easy as Possible
If you still have some factors to figure out regarding the details of your separation, mediation sessions can help you and your spouse make decisions you both feel right about. If mediation doesn’t work out the way you’d hoped, you may choose to contact a local lawyer experienced in family law.
While divorce is never any couple’s first option or ideal outcome, tools like mediation can ultimately make the process easier and more amicable for everyone involved.