Increasingly, parties are hoping to avoid court and handle their private matters in a less adversarial setting. In Pennsylvania, mediation and arbitration are possibilities for families who desire a setting outside of the traditional courthouse. There are pros and cons to both, so it is important for clients to understand those prior to agreeing to mediation and/or arbitration. Parties are generally not bound to do either of these alternative dispute resolutions, although some counties do require mandatory mediation in custody matters.
What is mediation? Mediation is when parties meet with a third party, neutral person in an effort to resolve issues. Mediation is generally confidential and what happens in mediation is not able to be used in court. Mediation can be done with or without attorneys present. The mediator is not an advocate for either party and is not permitted to give legal advice to either party.
What is arbitration? Unlike mediation, arbitration occurs when the parties are not able to reach an agreement in mediation or otherwise. The decision of the arbitrator is generally binding on the parties.
What matters can be mediated? Generally, all issues in divorce, custody and support may be mediated.
What matters can be arbitrated? Like mediation, custody, support and divorce matters may be subject to binding arbitration. It used to be that custody matters were not subject to binding arbitration. That changed with the passage of the Family Law Arbitration Act approximately two years ago. The difference is that custody matters which are arbitrated are subject to judicial review on a different standard than divorce and support matters.
Pros of mediation? Below is a list of some, but not all benefits of mediation:
- Efficiency – The process can be extremely efficient and it allow the parties to resolve their issues in a non-adversarial way.
- Less Costly – Generally parties go to mediation without counsel. Given this, they are splitting the cost of the mediator as opposed to each paying for counsel. In addition, mediation costs are less than trial costs in most instances so the process is cost-effective.
- Parties Deal with Issues on Their Timeframe – Because there is no pressure of court deadlines, the parties can take the time needed to reach resolution of the issues.
- Opportunity to Review with Counsel – Once an agreement is reached in mediation, the parties are generally provided the opportunity to review the agreement with counsel. An agreement reached in mediation is generally not binding until reduced to writing and signed by both parties.
- It’s Confidential – Nothing that is said in mediation is generally permitted to be used in other proceedings.
Cons of mediation? Some, but not all, of the cons of mediation are the following:
- Time Spent with No Resolution – If there is no agreement reached, the process can be seen as waste of time, although it often permits the parties to be educated on the issues and permits the parties to advise their respective counsel of the issues to be adjudicated through the court or through binding arbitration.
- Parties Not on Equal Footing – I always advise clients that if they are not on equal footing psychologically, in terms of financial sophistication, or otherwise, mediation may not be appropriate. Or, if it is, it might be best to attend with counsel to make sure you are not being taken advantage of, remembering that you will generally have a chance to review any issues in mediation with your counsel regardless.
- Potential Lack of Disclosure of Rights, Assets or Income – Since the parties are negotiating generally without counsel, they may not get a full disclosure of rights or the other party’s assets and income. This can be avoided by asking the mediator for a requirement of disclosure of these issues.
Pros of arbitration? A non-exhaustive list of pros of arbitration are:
- Quick Resolution of Issues – The arbitrator is quick to react to issues that arise, whereas a court does not have ability to do so. For example, the arbitrator can address an issue with document production or something similar in days, where a court would take weeks to address the same issue.
- Abbreviated Process – While some divorce, custody or support cases may take may months if not years, arbitration happens more quickly and generally concludes in a few months time.
- Arbitrator May Have a More Complex Understanding of the Issues – Arbitrators are specially trained and are also generally family law practitioners with many years of experience in dealing with complex custody and financial issues. Conversely, trial court judges may have never handled a family law matter before being elected to the bench or may never have handled complex financial issues as most of the financial matters in divorces are handled by hearing officers.
- Finality – The process concludes quickly and with less carnage than a court proceeding. And, it’s not subject to endless appeals or re-litigation, as it is binding on the parties (but see below).
Cons of arbitration? Here are some of the cons of arbitration, which is not an exhaustive list:
- The Cost – It can be costly up front. Generally, in the long run, it is the same or less cost but each case depends on the issues to be arbitrated.
- The Inability to Appeal – The decision of the arbitrator is binding and generally not subject to appellate review by the trial court. This is not so if the arbitrator exceeded his or her authority or if there is a miscalculation in the arbitration award.
- Credibility Determinations – Because arbitration is a more streamlined process, there normally is not the traditional examination of witnesses or cross examination. The arbitrator, however, may permit that. Many credibility determinations are made during these examinations so there is some, albeit minimal, downside on this.
Overall, alternative dispute resolution is generally better for parties and children than full blown court and litigation. It’s important to speak with your attorney regarding these options and determining if one or both of them are right for your matter.
