While both mediation and arbitration are alternative dispute resolution processes, mediation and arbitration are not the same thing. Mediation is more commonly used in family law cases than arbitration.
Mediation is an informal, confidential, and non-adversarial process where a mediator tries to encourage and facilitate resolution of a dispute between parties. A mediator is a neutral, impartial third party who has no authority to make decisions for the parties. The mediator’s role is to use his or her negotiation skills to generate movement by the parties towards compromise. Some advantages to mediation are that it is less expensive and more expeditious than litigation, it provides the parties the opportunity to settle their case on their own terms, and it permits the parties to be flexible and creative in formulating solutions. Mediation provides the parties control over the outcome of their case (and lives) as opposed to a judge who may not fully understand the parties’ circumstances and/or special needs. Most circuits in Florida require parties to mediate prior to going to trial. This is both beneficial to the parties and to the overloaded court system.
Mediators do not have to be attorneys; however it is strongly suggested that one use a mediator that is knowledgeable and experienced in family and matrimonial law.
Arbitration is an adversarial process similar to a trial but generally less formal than trial. The arbitrator sits as a judge or decision maker of the issues. Some advantages to using arbitration in family law cases are speed, simplification, the informality and finality of the proceedings, and privacy. The disadvantages of arbitration are: it is more expensive; the parties give up their right of appeal; and arbitrators are not bound by the same rules and regulations as judges are in rendering their decisions.
Lindsay Corcoran is a Family Law Attorney at Brydger & Porras LLP in Fort-Lauderdale, Florida, where she practices primarily marital and family law in Broward & South Palm Beach Counties.