Mediation vs. Arbitration in Family Law: What’s the Difference?

Photo of couple speaking

There is no doubt the divorce process can be emotionally, financially, and even physically draining. To minimize these effects, many families turn to alternative dispute resolution to work out an agreement. In family law, as in other types of civil law, mediation and arbitration can reduce litigation costs – and friction – in what can often be a contentious process. Here are some of the differences between the processes.

ADR versus litigation in New Jersey family law cases

Couples facing family law disputes typically need to resolve two major areas: division of finances and parenting time. Both topics are hot-button and the litigation process heightens the stress. Alternative dispute resolution (ADR) methods like mediation and arbitration offer parties the chance to resolve these areas outside of court.

ADR is less formal that court proceedings and is overall less expensive. The parties can feel like more active participants since they are not bound to strict procedural rules, which in turn can reduce the adversarial tone of the process. However, ADR is not suitable for all cases. For example, when domestic violence is a factor, the courtroom is a more appropriate setting.

Using mediation in family law

Many divorcing couples opt into mediation rather than court but New Jersey judges also have the option of referring family court cases to mediation, which operates like guided negotiation. The family court mediators are highly trained to help the parties work through those contentious issues like child custody so they can reach an agreement.

Mediation is non-binding so the parties work toward a voluntary agreement on key matters which is then drawn up into a contract which is enforceable. Parties participating in mediation have an incentive to reach an agreement because proceeding to a trial essentially takes the matter out of their hands; they will be bound to the judge’s order instead.

Family arbitration for family disputes

Arbitration is similar to a court proceeding in that each party presents its case before a neutral decision-maker. The decision-maker may be a single arbitrator or a panel of arbitrators chosen with the parties’ input. The arbitrators act like a judge, hearing both sides present their cases and then issuing a decision.

Arbitration may be non-binding but it is usually binding. Parties in binding arbitration do give up some rights. A very important one to consider is that, unlike in court, parties to an arbitration do not have the right to appeal except in extreme circumstances. With such a great disadvantage, it is important for consult with a NJ family lawyer before consenting to arbitrate.

Consult an experienced NJ divorce lawyer

What happens in a family law proceeding now can impact your rights for decades to come. If you are facing a divorce in New Jersey, be prepared by consulting with an expert family law firm Bergen County has put its trust in for many decades. Kantrowitz, Goldhamer & Graifman has spent the past four decades helping families in NJ and NY navigate through the matrimonial law process. We understand what you are going through and can help you through with knowledgeable legal advice and compassionate personal attention. Call today to schedule a free consultation in one of our offices.

Additional family law mediation and arbitration resources:

  1. New Jersey Association of Professional Mediators, Family and Divorce Mediation, http://www.njapm.org/content/family-and-divorce-mediation
  2. New Jersey Courts, Rule 1:40-1 Complementary Dispute Resolution Programs, https://njcourts.gov/attorneys/assets/rules/r1-40.pdf?cacheID=0LNSTat