Mediation is a guided process to assist in reaching a settlement that works for each particular family. In a lawyer assisted mediation, we utilize the services of a trained third party mediator who will work with the parties to reach a mutually agreeable resolution.
Any agreements reached at mediation can be incorporated in a consent court order or a separation agreement to ensure they are binding and enforceable.
Mediations are conducted on a “without prejudice” basis which means that, if an agreement is not reached, neither party can raise what happened at mediation, or any compromises that either party was willing to accept, in any subsequent proceedings.
At mediation the parties can choose the issues they wish to deal with, whether it is an isolated issue or all of the issues surrounding their separation.
If both parties are committed to reaching a resolution, mediation can be a valuable process that allows for more flexibility in arriving at an outcome. A well trained mediator may have the opportunity to be creative in suggesting resolution options that neither party had contemplated.
One of the major benefits of mediation is that it allows the parties to have input in the ultimate result. It is less rigid than litigation. In contrast, if a family law matter proceeds through the court system, a judge will strictly apply the law to the facts and will impose a judgment which outlines what that result will be. In addition, the parties have the freedom to choose an appropriate mediator. The family law and divorce lawyers at SVR work with many different highly regarded mediators who each have specific skill sets that may make them particularly suited to a particular matter. Many of the mediators we work with are experienced and respected family law lawyers, retired justices or psychologists.
Arbitration is usually reserved for those issues and matters where the parties cannot agree despite negotiation and mediation. It can encompass all issues or it can focus on issues that remain after a partial agreement is reached. Arbitration can be a more efficient alternative to traditional litigation. The courts have a heavy case load and therefore it is often difficult to schedule a trial within a reasonable period of time. The timing of an arbitration is limited only the schedules of the parties involved, their legal counsel and the arbitrator. However, while there is no, or minimal, cost payable to the court for the right to proceed to trial, an arbitrator does charge for his or her time.
It is important to note that, arbitration is still a formal process that results in a decision being made by an arbitrator (as opposed to a judge) that is binding on the parties, subject to any rights of appeal. The resulting arbitration award is legally enforceable through the courts.
Like a court trial, in an arbitration the arbitrator hears evidence and legal arguments from both sides and makes a decision. This decision is called an “arbitration award”. Unlike a trial, where a judge is assigned without the parties’ input, an arbitrator is chosen and appointed by the parties. The parties have the ability to specify which issues the arbitrator has the jurisdiction to deal with.
Mediation / Arbitration
Mediation/Arbitration is a hybrid process that utilizes both the mediation and arbitration dispute resolution processes. The process starts as a mediation where the parties have an opportunity to attempt to resolve the issues by agreement. If that process is unsuccessful, the mediator switches roles to an arbitrator and the proceeding changes to the more formal and binding arbitration process. One of the major benefits of a mediation/arbitration is that it provides both parties with the assurance that there will be some finality to the matter even if they are unable to agree. In our experience, parties work harder at reaching resolution, and are more compromising at the mediation stage, if there is a chance that they will have to proceed to arbitration if there is no agreement.