Differences between Mediation, Collaborative Divorce and Arbitration

Divorce mediation, arbitration and collaborative divorce are three different processes to resolve a couple’s differences during a divorce. They each have pros and cons. There is also a hybrid practice involving mediation and arbitration, and this is the process my office uses.

Mediation is a structure discussion between two parties facilitated by a neutral mediator. The mediator assists the parties to come to their own agreement on the terms of the divorce. It is a bedrock principle of mediation that it is a voluntary process with decisions being made by “informed consent.”

Of the three processes, arbitration is most similar to the judicial process. With arbitration, the parties (and their lawyers) present their case to an arbitrator. The arbitrator is someone both parties agree to conduct the mediation. Both sides put on evidence to convince the arbitrator that the arbitrator should rule in one side’s favor or the other. Usually, but not always, the parties agree that the arbitrator’s decision is final and binding.

Collaborative divorce involves both parties negotiating with one another, prior to filing a divorce, through their attorneys. The rub is that if the parties cannot agree, they have to start the process over again with new attorneys. The expense of starting over again is meant to serve as an incentive to resolving disputes before filing. Collaborative is meant to flush and settle differences before filing a divorce to ensure that the case does not need to go to court. The downside is that the parties may have real differences and they will spend thousands of dollars to discover this. They will then need to start the process over with new attorneys, and a second set of attorney fees.

As I mentioned above, my offices utilizes a hybrid mediation/arbitration process. In my cases, we mediate differences to come to a resolution. This way, both parties have control over the process and own the final solutions they come up with. However, in the rare instance when parties cannot agree, the job of deciding falls to the mediator at the conclusion of the mediation to make the final decisions.

The advantage of this process is that parties know when they will be done, they maintain control over the process, they know exactly how much it will cost (when going through One Day Divorce Mediation), and they avoid any risk of ending up in court. By the end of the preparation time, and the conclusion of the mediation, the mediator will have spend considerable time with the parties and will understand their issues and will be able to make a decision on how to divide property and debt consistent with Oregon law.