How Arbitration Helps in Separation and Divorce& Difference between Arbitration and Mediation

Arbitration, means, third party reviewing the case and evidences and impose its decision on the parties. The award, an arbitral tribunal’s decision, is enforceable by law.

Arbitration reduces the cost, time and stress considerably.

 

The attorney General of Australia has authorised private arbitration system, that is divorce lawyers specialised in arbitration, to service the divorce cases. The private arbitrators can arbitrate almost all the divorce related issues between the couple, except matters related to children. The issues surrounding children like custody, parenting responsibility, child care, child maintenance is heard by the court of law.

The good thing, I would like to suggest to the divorcing couple here is, they can choose the arbitrators. They can choose their own independent, private arbitrator or someone advised by the court. Just like you do your homework, compare and then decide on something before buying something, individuals are free to do so while selecting arbitrators as well.

Look out for professional, confident and informed arbitrator, who can understand your circumstances and decide unbiasedly based on facts and figures.

The fees arbitrators charge varies from case to case basis. I would suggest, feel free to window shop the arbitration services of few practitioners, before settling one for your case. This way you will also know how comfortable and confident you can be on your arbitrator’s judgement.

Difference between Arbitration and Mediation

 

Frequently, I come across couple, who understand ADR but with lots of questions on how they work (for them my earlier post is recommended). They often confuse mediation with arbitration. Though both are forms of ADR and aid in out-of-court settlements, they are not the same.

Here’s how:

  • Mediator is more like a counsellor! He/she cannot impose their judgement on the couple. Mediator can only steer the discussion, if it is losing track, to arrive at acceptable solution to the couple disputes. If the couple cannot agree to a solution, the mediator cannot do anything.

Whereas, an arbitrator’s duty is to validate the evidences and arrive at a judgement. An arbitrator must be decisive.

  • Mediation process is non-binding and only facilitative in nature.

Arbitration, on the other hand is generally, binding and determinative. The purpose of arbitration process itself is to draw a feasible solution based on evidences and arguments of the parties. A slight deviation from the arbitration process is non-binding arbitration, that is more like mediating but with an intention to pass the judgement and its implications. However, they are not binding on the parties.

I would not want to call non-binding arbitration as arbitration at all. As arbitration necessarily means ruling a binding judgement.

  • The mediator must maintain confidentiality and cannot indulge in facts weighing.

An arbitrator does the exact opposite of this! He should weigh the facts and draw conclusions.

Mediation and Arbitration are 2 different processes with different purposes.

Some people, opt for mediation and think if it doesn’t work, they can ask the mediator to settle things for them! Well, that is for the Mediator to decide if he/she is comfortable switching positions and rule fair award.

 

As I have witnessed people going through arbitration process, I can list some benefits and limitations of arbitration process:

Benefits

  • Arbitration is cost effective than divorce and settlement filing in court.
  • Since the set up and the procedure to arriving at the judgement is similar, the parties can be confident that they will have fair judgement.
  • The arbitration process can be kept confidential, if the parties desire so.

Limitations

  • Whatever said and done, an arbitral tribunal too can pass erroneous judgement, which is not easily revocable.
  • If there are many arbitrators on the arbitral tribunal, the judgement can be delayed.

I thought you many like to see this clip, a visual form of what I explained above! Have a look:

https://www.youtube.com/watch?v=TfT1bgsyYGM