While both mediation and arbitration aim to help families reach agreements out of court, there are differences in their procedures, the level of control parties have over the final decisions, and the final outcomes. In this article, we will discuss the key differences between mediation and arbitration in Washington to help you decide whether either is a good option for your case.
The benefits to mediation are multi-fold:
1. Voluntary Involvement:
Mediation is an entirely voluntary process, meaning both parties need to agree to this form of alternative dispute resolution. Further, mediation allows both parties to attempt resolution of their case with the aid of a neutral third party, without any obligation to accept an offer or be bound by any decisions made in mediation, unless they agree to be bound. This gives both parties a sense of control in their case and an opportunity to proceed with litigation if issues remain unresolved.
2. Neutral Mediator:
In mediation, the mediator does not make decisions for the parties involved and remains impartial. The role of the mediator is to help the parties reach their own agreement by aiding the parties in communicating their desired outcome and helping identify issues so they may reach a mutually acceptable solution. The mediator helps both parties have an equal opportunity to express their concerns and needs.
3. Cost and Process:
Mediation is often significantly cheaper for represented clients than taking a case to trial. A mediation typically lasts anywhere from a half day to a few days, depending on how many issues the parties need to resolve and how complex the case is. Further, parties can get a mediation scheduled much sooner than waiting for a trial date, which is usually scheduled many months out. The process of mediation typically involves preparing a statement of the background of the case, issues to be resolved, and a proposed resolution to those issues. Additionally, the parties will prepare and provide evidence and prior pleadings to the mediator for review ahead of the scheduled mediation date. If parties are represented, their attorneys will attend mediation and advocate the client’s desired outcome.
Mediations in Washington State are confidential, which means that discussions, documents, and agreements reached during mediation cannot be used as evidence in court. This confidentiality encourages open and honest communication during the process.
Arbitration: A Binding Decision-Making Process
The benefits to arbitration are:
1. Binding Decisions:
In arbitration, the arbitrator listens to both parties’ arguments and considers the evidence presented in order to make a final decision on all issues and disputes presented. Unlike mediation where the parties work together to come to a mutual solution, parties have little control over the outcome in an arbitration and are legally bound by the decision of the arbitrator. Often times parties may agree to a hybrid model, where parties agree to first attempt mediation, and if they cannot resolve the disputes on their own, the mediator will “switch hats” and proceed with arbitration. Again, both parties have to agree on the model of dispute resolution beforehand. Most people prefer this hybrid mediation/arbitration model as it maximizes the ability for parties to have a sense of control in the outcome in their case, but allows for a final decision should no agreement be reached by the parties.
2. Informal Process:
While more formal than mediation, arbitration is typically less formal than a trial and less strict when it comes to rules of evidence and procedure as one would expect in a trial. Arbitration decisions can only be challenged in limited circumstances, such as fraud or a violation of public policy. This means that parties have less ability to legally challenge the outcome of the case.
3. Speed and Efficiency:
Similar to mediation, arbitration can be scheduled much sooner than a trial and cases are typically resolved quicker than in a trial.
Choosing Between Mediation and Arbitration for Your Family Law Disputes in Washington State
When deciding between mediation and arbitration for family law disputes in Washington State, you should consider the following:
1. Nature of the Issues:
Mediation may be more appropriate for parties who are willing to work together to find common ground, while arbitration might be better suited for cases where parties are very far apart in their requests.
2. Control vs. Finality:
Mediation offers more control to the parties by providing an opportunity to craft a customized solution to their needs. Arbitration provides finality, but at the cost of relinquishing some control as the arbitrator may not find that either party’s requests are reasonable and may decide to resolve a case in a way that neither party proposed or anticipated.
Mediation is often less costly than arbitration, as it typically requires fewer formalities and less time. Arbitration may involve opening and closing statements and a more formal examination of the parties and evidence than mediation. Parties typically split the cost of the mediator/arbitrator’s fees, unless they agree to allow the mediator/arbitrator to decide how fees will be split.
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.