Understanding Mediation vs Litigation vs Arbitration

Divorce may seem like the same thing no matter how you slice it. But when it comes down to mediation vs litigation vs arbitration, they are fundamentally different. Moreover, each gets to the same result – conflict resolution – different ways.

One of the biggest downsides to divorce is that there is much conflict. Even in an amicable divorce, things are rarely pleasant. Both sides want to divide property, figure out custody and co-parenting, and move on with their lives.

In many cases, couples going through divorce are running high emotionally. There is bitterness, anger, and resentment towards their now-ex. And in the worst of cases, one party simply wants to hurt the other.

The right path to divorce is different for each couple. Knowing the difference in mediation vs litigation vs arbitration is an important first step. It will help divorcing couples determine which route is best for what they need and what they want, as opposed to simply going through divorce court as is the most traditional way.

Mediation vs Litigation vs Arbitration Definitions

There are a few important ways to define each of these classes. They all strive to achieve results in a different manner.  A good place to start is by understanding the definitions of each classification. It will at least provide a basic understanding of what each represents.

Litigation

  ne·go·ti·ate –verb (used without object)

1. to deal or bargain with another or others, as in the preparation of a treaty or contract or in preliminaries to a business deal.

–verb (used with object)

2. to arrange for or bring about by discussion and settlement of terms: to negotiate a loan. 3. to manage; transact; conduct: He negotiated an important business deal.

4. to move through, around, or over in a satisfactory manner: to negotiate a difficult dance step without tripping: to negotiate sharp curves.

5. to transfer (a draft, promissory note, etc.) to a new owner by endorsement and delivery or by delivery.

ne·go·ti·a·tor –noun

1. a person who bargains or deals with one another or others.
2. a representative on behalf of another or others.

Synonyms: convey, transmit, sign over. fa·cil·i·ta·tor –noun

1. a person or thing that facilitates.
2. a person responsible for leading or coordinating the work of a group, as one who leads a group discussion: Each committee will meet with its facilitator.

When we think of litigating, we are generally thinking about going to court. Litigation is essentially a dispute between two parties. When divorcing parties enter into litigation, they have lawyers argue their case in front of a judge, who then makes a decision.

What to Expect From Litigation

Litigation may be the traditional route, but it is also the most costly. Lawyers are not cheap, and they will bill you for everything. Meetings, consultations, court appointments, filings, etc. will run up your expenses substantially.

In cases of a truly bitter contested divorce, things will only get worse. If there are significant assets at stake, fighting for them may make the most sense. Just consider the investment that it will take to potentially win those assets.

Also, with traditional litigation, there is the potential that the case could be lost. Assets may not be divided in a way that one party is happy with, leading to a lot of wasted time and money.

Generally speaking, people walk away from divorce litigation far worse off than they began. There are those who come out way ahead in terms of money and assets. For the most part, though, both parties come out worse for the wear emotionally and financially.

That is why so many more couples are turning to arbitration and mediation. That financial and emotional exhaustion is probably the biggest difference in mediation vs litigation vs arbitration and a deciding factor for couples pursuing divorce.

Mediation

me·di·a·tion –noun

1. action in mediating between parties, as to affect an agreement or reconciliation.

2. International Law. an attempt to affect a peaceful settlement between disputing nations through the friendly good offices of another power.
3. Mediation, arbitration designate processes for bringing about agreement or reconciliation between opponents in a dispute. Mediation implies deliberation that results in solutions that may or may not be accepted by the contending parties. Arbitration involves a more formal deliberation, it being understood that the results will be binding on the contending parties.

At the heart of these classifications is dispute. Parties arrive to this step in the process because they have disputes that they are unable to solve on their own. Whether it be litigation, arbitration, or mediation, the goal is to find resolution to conflict.

Mediation is meant to arrive to that conflict resolution through more cordial means. Instead of pitting both sides against one another, a mediator will work to come to a resolution that suits both parties. They are impartial and their motivations are as well. Lawyers are trying to win for their clients, mediators are simply trying to resolve the conflict.

Perhaps the biggest key in mediation vs litigation is that conflict resolution is the ultimate goal. Disputes are talked out – either between both parties or separately with the mediator – and they make their recommendations.

It allows for more peaceful resolutions and avoids the finality of a judge (though a signed agreement can be binding if there is one). For couples who want to move on with their lives, mediation is proving to be one of the most effective methods.

Arbitration

ar·bi·tra·tion –noun

1. the hearing and determining of a dispute or the settling of differences between parties by a person or persons chosen or agreed to by them:

Rather than risk a long strike, the union and management agreed to arbitration.

2. International Law. the application of judicial methods to the settlement of international disputes.

This is the best of both worlds. Mediation is fine if there is an agreement between both parties to come to a conflict resolution. Still, emotions can get the best of us, and there is sometimes a lack of agreement through mediation.

Arbitration removes the nasty litigation aspect with the finality of a judge. Both parties and their lawyers would bring their case before the arbitrator. When the arbitrator has heard all of the facts and figures, they come to a decision on everything. That includes division of assets, custody, spousal and child support, etc.

The caveat here is the same as litigation: it doesn’t matter how either party feels. When the decision comes down from the arbitrator, it is final. One party may come away with far less than they anticipated at the start.

Mediation vs Litigation vs Arbitration: Which is the Best?

There is no clear-cut path or formula. What works for one situation may not for others. Ultimately, it comes down to the goals of the divorcing parties as well as how they feel about one another. The goal should be to come to as amicable a split as possible, especially when kids are involved. Unfortunately, that is not always the case.

So, it is important to understand the pros and cons involved when it comes to mediation vs litigation vs arbitration. Knowing which situation best suits the needs and goals of the couple leading into he proceedings will help ensure the best possible results.

The Pros and Cons of Mediation vs Litigation vs Arbitration

Each process has its own distinct advantages and disadvantages. Part of choosing the right path is understanding what each has to offer.

Mediation pros. A focus on conflict resolution. Allows couples to take division of assets into their own hands. The most likely scenario where both parties come out happy with the results. Costs much less than litigation and is often times far quicker as well.

Mediation cons. May not come to a resolution if both parties cannot agree on terms. Mediation is not necessarily binding unless there is a separation agreement in place that outlines who gets what, spousal support, co-parenting, etc.

Litigation pros. The potential to get everything desired. If your lawyer can argue the case successfully, it can lead to a significant advantage in obtaining assets, gaining custody, and more.

Litigation cons. Extremely costly, both from a financial and emotional standpoint. Often times high-conflict and creates both ugliness and tension at all times. Does not guarantee that the results will be favourable. Potential for a lot of wasted time and money.

Arbitration pros. Quicker and less costly than litigation. Potential for significant advantage as in litigation without having to create the ugliness and tension that would accompany the latter. Definitive decision handed down.

Arbitration cons. Not guaranteed to provide favourable results. Arbitrator may rule in favour of the other party, finalizing things like asset division, co-parenting, etc. that one part does not agree with.

Turn to Fairway for Mediation vs Litigation vs Arbitration Help

Still not sure which avenue is the best one for your divorce? Fairway can offer consultations on the benefits of mediation and what it can mean for your situation in particular. Our team of divorce professionals will help determine which route is the best for you and how to pursue it accordingly.

No matter what path you choose, don’t walk it alone. Have the professional assistance that can make all of the difference.