MEDIATION & ARBITRATION
When to use Alternative Dispute Resolution
We like to use both Mediation and Arbitration in family law cases.
With Mediation we usually prepare almost as if we were going to trial. The worst that can happen is that we are unable to settle the case and at least have some idea of what the other side is looking for as we prepare for trial. The best that can happen is that we settle the case and save you the expense of a trial and the uncertainty of a decision by the Judge, who may misunderstand the evidence or just not see the evidence our way.
Mediation is frequently used by separating or already separated parties to negotiate the terms of their legal separation. These terms include child custody and visitation matters, child support, property division, post separation support and alimony, and other matters relating to their marital separation.
Mediation is a structured negotiation which is moderated by a “neutral” party whom we refer to as a mediator. The mediator’s purpose is to facilitate open and positive discussion which may lead to agreement on difficult issues. However, the mediator can not render a decision on any matters upon which the parties disagree. Any agreement reached in mediation must be formalized according to legal requirements to make it enforceable.
We also like to use Arbitration, which unlike Mediation involves presentation of evidence to an arbitrator who then issues an “award”, or decision, on the issues presented for Arbitration. Even though we must pay the arbitrator for his or her services, we can usually get the case finished more quickly and efficiently than would be possible by trial in the courtroom.
Arbitration is a process whereby the parties submit contested issues to a “neutral” who we refer to an “arbitrator”. The arbitrator serves as a privately selected “judge”, and rules upon the issues submitted for arbitration under a written arbitration agreement. The agreement may call for expedited procedures for presenting exhibits and other evidence, and the parties may opt to modify the traditional rules of evidence and procedure which would otherwise apply in a traditional Court proceeding.
Even though the parties still must pay attorney’s fees and the arbitrator’s fee, financial savings may be accomplished and time saved through the expedited procedures and modified rules in an arbitration proceeding. Arbitration can also be completed more quickly than would be possible through the traditional Court process.
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