What Is the Difference Between Mediation, Arbitration and Litigation in a Divorce?

November 11, 2018   |   Tanya Davies   |   blog
Litigation in a Divorce
Litigation in a Divorce

What Is the Difference Between Mediation, Arbitration and Litigation in a Divorce?

When you decide to move to separate from your spouse, there are three potential ways in which to deal with the outstanding issues, such as the division of matrimonial property, child custody, child support and child visitation schedules. You can use mediation, arbitration or litigation, or a combination of all of these methods. It is always a good idea to consult with your divorce lawyer to determine which methods would be most appropriate for your particular situation.

Mediation is a process where you attempt to resolve outstanding matters between yourself and your spouse by working out terms that you both agree to. For mediation to be successful, both people have to be willing to compromise on various issues, since the mediator cannot impose a settlement The process normally involves the couple meeting with their respective divorce lawyers and a third party- the mediator- to work out a settlement. You can also attend mediation without a lawyer, but you will, in any event, need to obtain independent legal advice in order for the mediated terms to be final and binding.

In cases where the couple is not amicable towards each other, mediation is still possible. Rather than meeting together in one room, each person is kept in a separate room and the lawyers convey the wishes of each person as they work with the mediator towards creating a suitable agreement that is acceptable to both parties.

Arbitration is a process used when couples cannot agree on specific matters after attempting mediation. This process is where the couple, along with their divorce lawyers, meet in front of a third-party non-biased arbitrator.

The arbitrator listens to arguments made by each person and then makes a decision for the couple. The decision is binding, just like it would be in court. The main benefit of using arbitration is it prevents the couple from having to appear in court in front of a judge. It is also quicker and the parties can control what issues are dealt with. Sometimes, if mediation fails, the same third party can be used to hear the arbitration. A negative aspect of arbitraion is that you have to pay the arbitrator, whereas you don’t pay the judge.

Litigation is the process used when the couple has failed to work out suitable agreements during mediation or arbitration processes, or they simply feel that it is quicker and easier to go directly to court. Any unresolved issues are ultimately argued in court in front of a judge. The judge listens to arguments made by each person before making a ruling. Once the judge rules on the outstanding matter, the decision is final, subject only to an appeal if the decision is wrong, either in fact or law.

What If my soon-to-be ex-spouse is contentious?

A contentious divorce is where at least one person is unwilling or refuses to agree on anything. If your soon-to-be ex-spouse is contentious, then arbitration or litigation would be more appropriate to resolve outstanding matters and come to the appropriate decision. Arbitrators and judges tend to look more favourably towards someone willing to negotiate and compromise compared to someone who objects to every proposal and just wants to fight.

By no means does this imply you should give into your spouse’s demands just to get things settled. Rather, it simply means you need to demonstrate to the court you are willing to work out a suitable agreement that is also in your best interests. This is why it is always important to have an experienced divorce lawyer assist and guide you through a contentious separation and divorce.

For assistance with filing for separation and divorce and resolving outstanding matters using mediation, arbitration or litigation in a Divorce, please feel free to contact Davies Law Firm at (613) 688-0462 today!

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