Providing Divorce Mediation Services Throughout California
Providing Divorce Mediation Services Throughout California
Reach out to find the best solution for your divorce with trusted professionals.
In California, divorce mediation and arbitration are two distinct concepts. And the main difference lies in the decision-making power. In mediation, you and your spouse make a decision while in arbitration, a third-party makes the decision for you.
Often, these processes are confused. Divorce and family law cases are mediated and rarely subject to arbitration. However, both are considered Alternative Dispute Resolution (ADR) methods.
In other words, they are to be more collaborative and private than traditional options like litigation. In mediation, you have more control over the final agreement, and for arbitration, you are given a binding decision from a legal expert. Simplify your divorce or family law matters in California with Dina Haddad. Book your free family law consultation today.
Family law mediation is a joint process where a neutral third-party – family law mediator – helps you and your spouse negotiate a divorce agreement. The mediator acts as a facilitator to help with your conversations.
The mediator does not make decisions for you. Instead, a mediator facilitates the conversations in order for you to come to a common understanding. Divorce mediation process is effective because it allows the two of you to make your own agreement. The key benefits of mediation are:
Family law mediation can also help you resolve all of the important issues in your separation, including your parenting plan, child support, spousal support, division of your debts & assets, and prenuptial & postnuptial agreements.
You can also use divorce mediation with your attorneys as a settlement conference. Parties who may be heading to a public court trial, opt to use private mediation as a final attempt to settle their divorce before an impending court trial.
This is still not considered arbitration, where the arbitrator will decide the outcome. Settlement conferences also do not have the formal rules of procedure that arbitration has as further discussed below.
Family law arbitration is a substitute for court and is the process where you and your spouse bring your case to a private arbitrator who serves as a judge. This is more often used for high-profile cases, in which the parties cannot resolve their disputes in mediation. Rather than having their private matters in a public court system, the parties agree to use a private judge.
The arbitrator is a neutral third party who is provided with evidence and testimony before determining the outcome by making a decision that is binding on all parties. You may also think of it as a private trial. More often in family law, we refer to this as private judging.
The main advantages of arbitration include the following:
Who wins arbitration? There is rarely an actual “winner.” The arbitrator is tasked with making a legally sustainable decision based on the evidence, which could possibly involve a degree of compromise that both parties find unsatisfactory.
What issues are not arbitrable? Usually, an arbitrator cannot decide issues such as terminating parental rights or criminal charges. While a child support decision can be arbitrated, the court retains the authority to review the arbitrator’s decision to ensure that it is in the best interest of the child.
In summary, mediation is a facilitated negotiation in which you determine the outcome, whereas arbitration is like a private trial in which an arbitrator makes the decision for you.
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Feature
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Divorce Mediation
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Divorce Arbitration
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Control Over Outcome
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You and your spouse create the final agreement.
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The arbitrator imposes a binding decision.
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Mediator/Arbitrator Role
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Acts as a facilitator for your discussions.
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Acts as a private judge who rules on the case.
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Formality
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Informal, collaborative meetings
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Formal, with rules similar to a court trail.
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Binding Nature
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Non-binding until you both sign an agreement.
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The decision is legally binding and enforceable.
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Cost
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Generally lower cost and fees.
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Typically more expensive due to hearings
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Privacy
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High privacy for all discussions.
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Private process, but the award may be filed with the court.
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Appeal Rights
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Not applicable; you agree to the terms.
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Very limited, usually only for procedural errors.
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As far as expenses go in California, arbitration is almost always more expensive than mediation. In California, divorce mediation typically is cheaper and costs somewhere between $5,000 and $15,000 total, with you and your spouse sharing the mediator fees. On the contrary, for arbitration you could be easily looking at over $50,000.
Given the arbitrator’s hourly rate (often $400-$600+/hour), plus any formal case preparation and attorney fees, you’re essentially paying for a private judge and your attorney (as well as your spouse requiring an attorney).
Additionally, given the high-conflict of arbitration cases, and the formality of the process, parties typically require experts, like a forensic CPA, which further adds to the cost. For these reasons, arbitration is substantially more expensive than mediation.
In terms of timing, mediation takes far less time than any other option. A typical divorce mediation in California can usually be completed in several sessions within three to six months, whereas arbitration usually lasts longer, and can take six months or longer.
Why the delay? Arbitration is more formal in that it requires pre-hearing preparations and scheduled hearing dates, like a mini-trial. So while both options are faster than litigation, mediation is the quickest out of both methods.
Related: Divorce Mediation vs Litigation in California
Mediation is very cooperative in nature, meaning that the approach is to have a conversation focused on collaboratively solving a problem together. In comparison, arbitration is quite adversarial; you and your spouse will each advocate for opposing cases to an arbitrator, similar to a mini-trial, and each will want to convince the arbitrator of their case.
If you are looking for strictly a collaborative, team-based, non-adversarial divorce process, you should investigate a settlement conference where both spouses and attorneys agree to entirely resolve the case outside of court.
In mediation, any agreement you reach is voluntary, and it is non-binding until you both sign a settlement contract. This provides you one final opportunity to review the terms. In comparison, a judgment issued by an arbitrator or private judge in binding arbitration is final and enforceable, much like a court judgment, with very few options for appeal.
There are non-binding arbitrations, but they are quite rare. If the parties do not accept a non-binding decision, it will usually proceed to binding arbitration or trial. This makes the intention of non-binding arbitration
In mediation, your family law mediator is a facilitator. They are to help facilitate your dialogue, communicate clearly, and consider options for resolution but they are never to impose a decision on you.
In arbitration, the arbitrator acts as a “private judge.” They listen to the evidence from each side, assess the legal strengths of each interpretation of the facts, and finally render a decision to determine the outcome for you.
Mediation gives you the greatest amount of control. You and your spouse consider each decision together, everything from division of assets to parenting plans. You will develop an agreement that suits the needs of your family.
In arbitration, you give up that control. The arbitrator listens to arguments, then imposes a binding decision that may not be what either of you wanted. Your choice between these two options is to either help create a solution or to leave the decision to a professional.
Related: Mistakes Californians Make When It Comes to Asset Division in California Divorce
Mediation is made to be informal, and it is more like a structured business meeting or even a guided conversation. There is no strict application of evidence rules.
Meanwhile, on the other hand, arbitration is formal and resembles a courtroom trial. There are specific rules of how evidence is to be presented, witness testimony, and making formal records.
Structurally, arbitration seems more formal, to some extent less flexible and less personal than mediation.
Mediation is very confidential. What you discuss will be protected by law and cannot subsequently be used in court. Similarly, arbitration is private, and conversations are, for the most part, inadmissible in court.
However, the arbitrator’s final decision (the “award”) will be filed with a court so that it can become an enforceable judgment that again becomes public record. The best option for maximum privacy is mediation.
How much preparation you will need will greatly vary. Mediation is different; mediation is primarily about having a candid conversation, so your preparation is very limited and will mostly revolve around gathering financial documents and doing some focused thinking about your goals.
In arbitration, preparation is much more extensive and is similar to preparing for a trial in court. You will have a formal discovery and will be exchanging evidence, preparing witnesses, and developing a legal case to present to the arbitrator, which will take time and effort.
Related: Divorce Mediation Preparation Guide
In mediation, the agreement you reach is voluntary, so you have to agree to the terms before it is final. In comparison, arbitration is binding, but your right to appeal is very limited. You are only permitted to challenge an award based on serious procedural errors, such as fraud or misconduct by the arbitrator; there is no right to appeal simply because you do not like the result.
The emotional costs associated with each process are a significant consideration. Mediation is usually a lower stress option because it allows you, with your spouse, to develop the solution and is seen as cooperative and collaborative, with a sense of control.
On the other hand, arbitration is more emotionally taxing. Because the decision is compelled upon you, it gives a feeling of loss; it has an adversarial component to it, similar to when you go to court, and may lead to exacerbated conflict and resentment.
It is essential for you to understand when your agreement becomes official. A mediated settlement agreement is not enforceable without being filed with the court and approved and accepted by the court before becoming enforceable as a legally binding order of the court.
An arbitration award, however, is enforceable as a judgment as soon as it is filed with the court, and is enforced with the same force and effect as a ruling made by a judge after a trial, while minimizing court involvement.
Med-Arb is a combination of mediation and arbitration. You begin the process in mediation with a neutral third party to try to reach a collaborative resolution. If the mediation gets stalled over certain issues, the neutral third party will switch from their role as mediator to that of arbitrator. As the arbitrator, their job is to resolve the stalemate and make a legally binding decision on the outstanding issues so there is a final resolution.
For example, let’s say you and your spouse were able to mediate the parenting plan and property division, but could not agree on the amount of spousal support. Under Med-Arb, the mediator would become the arbitrator. You would then only get to speak on spousal support and present evidence only on that one issue, and afterward, the arbitrator would issue an enforceable ruling.
Yes, that’s the complete idea of Med-Arb. You agree to both processes in sequence, beforehand, with the same neutral. You have a safety net. You’re going to work together on a solution, but you have a procedure to yield to before you completely stalemate.
Absolutely, that is the whole idea of Med-Arb. You explicitly consent to use both processes sequentially with the same neutral for the entire duration of time you worked together. This is a safety net: you work toward a negotiated resolution, but if the negotiations fail, there is an already decided process to avoid a complete impasse.
When would you use Med-Arb? It is usually employed when parties want to support a cooperative approach, yet they require the security of a binding resolution on issues they would struggle to negotiate a resolution. It is recommended for complex matters where parts of the matter are negotiable and parts of the matter are highly contested.
Both mediation and arbitration are private alternatives to the public and expensive litigation process. However they serve vastly different purposes. Ultimately, your choice comes down to one question: do you want to create your own resolution or do you want someone else, preferably a qualified expert, to decide for you?
Most times, couples choose mediation for collaboration where they both work together to fix certain negotiable issues. As for arbitration, they are often for more complex matters that need definitive ruling.
Mediation is not recommended in cases of prior domestic violence, extreme power, imbalances and dishonesty. Otherwise, mediation is a great choice if you would like to reach a consensus.
You should consider mediation when:
The biggest problem with mediation versus arbitration is that mediation requires cooperation. If you have a money-stubborn spouse, mediation may stall or not reach a conclusion.
If you are anxious to give up complete control over the outcome of your divorce, arbitration might not be the best option. You should only consider arbitration when:
The major downsides of having your divorce decided by arbitration are the cost of the process, lack of control, and extremely limited ability to have the decision overturned.
While both mediation and arbitration are better alternatives to court, for divorcing couples, family law mediation is far superior. You have control over the outcome, a much cheaper cost, and it stays confidential.
If you are a business owner, executive or high-net-worth individual, mediation provides a much more thoughtful and streamlined way to resolve your family law issues. At Families First Mediation, we have a team of professionals with a collective 60+ years of family law experience. Are you ready to have a better option? Take control of your divorce or any other family law matter with Dina Haddad. Book your free consultation today.
Read More: Move Out During Divorce in California
Once a mediated agreement is obtained, the divorce is finalized when the court approves the agreement and the six-month period required by California law has elapsed.
Arbitration may also be used to determine a binding decision regarding complex issues when collaboration has reached an impasse. The process results in a decision more quickly than litigation, but the parties limit their control relative to being the decision-maker.
Consider walking away from mediation when there is ongoing domestic violence and dishonesty about financial matters, or when there is no good faith bargaining or participation. The safety and equity of the parties are ultimately the most important considerations in this situation.
You will receive a formal Notice of Entry of Judgment from the court. The notice is a formal and legal document that states that your divorce is final and the dissolution of your marital status is complete.
If both parties agree, mediation is the least expensive process for the divorce procedure. The overall divorce cost is drastically lower than a negotiated divorce action in a courtroom.
