Arbitration is the opposite of mediation in many ways.
Arbitration is a form of adjudication where one arbitrator or a panel of arbitrators renders a decision in the case as presented by each party or their attorneys. Arbitration may either be binding upon the parties involved or non-binding. Binding arbitration means that the parties are legally bound by the arbitrator’s decision. In non-binding arbitration, either party may demand a trial within a specified period, otherwise the non-binding decision becomes binding. The essential difference between arbitration and mediation is that in arbitration the arbitrator or arbitrators make decisions for the parties while in mediation the parties are empowered to make their own decisions and craft their own settlement terms.
Arbitration is a flexible method for divorcing couples to resolve a dispute over finances and / or property outside court. If divorce proceedings are already being heard in court, arbitration can also be used to resolve discrete issues which may be holding up the case as a whole. It can succeed where other attempts at resolution have failed.
What are the advantages?
Arbitration has several attractions:
Flexibility: It can take place when, where and how the parties choose. The arbitration can take place at the arbitrator’s place of work, or somewhere neutral, at a time which suits all involved. The parties can be present in person or the arbitration can be conducted in writing. It can also be used to resolve discrete issues which may be hindering the overall resolution of the case.
Confidentiality: The proceedings, the decision and the award are totally confidential (no journalists are present and the details are not made public), This makes the process particularly attractive for those in the public eye and the wealthy.
Speed: Because parties can choose when, where and by whom the arbitration is conducted, it is generally a quicker route than court which is notoriously slow for a number of reasons: cases involving children get priority; litigants-in-person, unfamiliar with court procedures, slow up proceedings; and there are not enough judges. Finally, there is always the risk of having a case ‘bumped’ by a more urgent hearing.
Choice: Unlike court where the parties have no say over the judge allocated to their case, the arbitrator is chosen by both parties and he or she will oversee the process from beginning to end.
What are the disadvantages?
The disadvantages are few but important to understand:
Binding decision: Both parties must agree at the outset to accept the arbitrator’s decision. His or her decision is binding on both parties and cannot be subject to appeal except in exceptional circumstances (for instance if the order proves to be unworkable for whatever reason or if there was something intrinsically wrong with the arbitration process).
Full participation: the arbitration process only works if both parties participate fully and are prepared to be open and honest – if one party tries to hide assets, then going to court is likely to be the only option.