What’s the Difference Between Mediation and Arbitration?

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What’s the Difference Between Mediation and Arbitration?

Don Denkinger probably wishes people had asked him to mediate first base instead of arbitrate it. His infamous blown call in the 1985 Major League Baseball (MLB) World Series allowed the Kansas City Royals to rally and take Game 6, forcing a Game 7, which they won against the St. Louis Cardinals. Denkinger was not asked for advice at first base; he was the umpire, his job was to rule one way or the other. That play, known to MLB fans to this day as “The Call,” illustrates the difference between mediation and arbitration.

Divorce Mediation Defined

A mediator is an adviser, a guide, and a coach. A mediator does not decide anything. If you and your wife are struggling to get through a divorce, a mediator can help smooth over disagreements, get both sides of an argument heard, and help each of you choose a path forward. A mediator does not make any legally binding decision for either side.

Divorce and custody mediators working in Virginia cannot offer legal advice. They are not judges or advocates for either side, though they may wear attorney hats in other situations. They do not represent your children (a guardian ad litem may serve in that role) and do not replace lawyers in a divorce proceeding.

So what does a divorce mediator do, then? Suppose you and your wife cannot agree on property division. A mediator may be able to help both of you reach an agreement that honors both of you:

  • You give up the family minivan so your wife can use it for starting a pet-grooming business;
  • Her increased income shortens the time you must provide spousal support

Mediation is sometimes looked at as an alternative to a contested divorce, and can streamline the process for everyone: you, your wife, the courts, and attorneys for both sides. Property settlement agreements and child custody are typical areas where mediation can iron out issues without involving expensive legal time.

Mediation is not designed to patch your marriage back together; you are not mediating marital discord, but settling arrangements for separation and divorce. Both you and your wife have to agree to each topic, and once you agree, you do not revisit it.

The mediator’s time is generally less costly than having both attorneys present; neither attorney need be present during a mediation session, though one attorney trained as a mediator can take on that role. This naturally raises the suspicions of the other spouse, but trained mediators are required to avoid advocacy. The downside of using a mediator instead of your family law attorney is that your attorney will be able to more aggressively help you get the result you’re seeking as your advocate.

Divorce Arbitration Defined

Our MLB first base umpire, Don Denkinger, made a ruling in favor of one side over the other; that is what arbitrators do. Rather than tie up Virginia Circuit Court time, a couple may instead choose to go through divorce arbitration to resolve conflicts in the divorce or any related aspects (child support, visitation, custody, separation agreement, or spousal support).

You and your wife may have begun a divorce with attorneys representing both of you, but at some point the give-and-take broke down. Tempers flared; passions rose; words flew. Rather than take the legal battle before a Virginia judge, though, you and your attorneys could engage in a sort of junior trial, a divorce arbitration.

Arbitration offers several benefits:

  • It is private
  • It is less costly than court time
  • It is informal
  • It is less emotionally charged than a Circuit Court appearance
  • It is confidential
  • It can be scheduled far more rapidly than a court hearing
  • It gets results

Unlike a divorce mediator, a divorce arbitrator makes a final ruling. Both sides agree on the arbitrator, present their cases, and let the arbitrator decide. The process can include a deadline for the arbitrator’s decision, reducing stress for you and your wife.

Arbitration has risks, though:

  1. It cannot be appealed
  2. One side may be unhappy
  3. The stakes (your children’s future; your finances) are just as high as in a courtroom conflict

Should You Go to Mediation?

Both separation and divorce eventually end, but getting to the end can follow many paths. Mediation is one such path; it offers a mutually agreeable way around sticking points. Arbitration is another, more binding path. It offers a decision that avoids costly court battles. A contested divorce in open court is yet another path.

Your choice of venue and method of resolution largely depend on the temperament of you and your wife. Say you have a multi-million-dollar estate but you two can resolve differences amicably. You may be able to have a no-fault, uncontested divorce. You may be able to get your two attorneys together in just a few sessions and sign a property settlement agreement, child custody and visitation schedules, and spousal support. You need neither mediation nor arbitration.

Say, though, you have a meager estate but you and your wife are stubborn, angry people (hey, it happens; let’s not presume every life is lifted from the Disney Channel). You cannot agree on anything. A good first step, financially and emotionally, could be mediation. If that does not work, step up to arbitration. Your goal is not to seek vengeance, but justice, so most of your conflict could be resolved outside the courtroom.

Don Denkinger, still infamous, has made a modest living at baseball card shows signing pictures of the play. He is philosophical, and has a painting in his home of the play to remind him that everyone makes mistakes. If he can survive his mistake and find peace, you can, too.

For any questions you may have concerning mediation, arbitration, separation or divorce, please call The Firm for Men at 757-383-9184, or contact us online to schedule a consultation with our office. We love baseball, but we love the law even more. Let us help you with your legal challenges.

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