Is Arbitration Different from Mediation?
Both arbitrators and mediators are dispute resolution professionals who help parties resolve their legal disputes out of court. Unlike mediators, however, who limit their involvement in a case to guiding parties toward their own solutions, arbitrators act as private judges. Arbitration tends to be somewhat more formal than mediation, and is more similar to a courtroom hearing or trial, although the rules are generally relaxed. Arbitrators weigh evidence and make final decisions in a case, just like judges. Most arbitrators are attorneys or retired judges.
Arbitration in New Jersey Divorce
Arbitration offers some of the same benefits as mediation for divorcing couples. Like mediation, arbitration is a streamlined process that bypasses congested court calendars, often conserving both time and funds. Both procedures permit parties to choose the person who will help them reach decisions and to decide whether that person will help them resolve their entire case, or just one or two specific issues. Both procedures afford greater privacy protection than litigation.
There are also many differences between arbitration and mediation. An arbitrator's decision is usually binding, provided that both parties clearly and voluntarily agree to this ahead of time in a signed writing or on a court record. Because binding arbitration takes the place of a court hearing or trial, participants give up the right to take their dispute to court. Parties can also choose nonbinding arbitration if they wish to preserve the right to get a second opinion from a judge. Nonbinding arbitration can sometimes provide a useful means of assessing the relative strengths and weaknesses of a case.
Unless the parties specify otherwise, an arbitrator will have broad discretion over how to conduct the arbitration. New Jersey law, however, allows the parties to retain control over many procedural aspects by agreeing to applicable rules in a written agreement. A few extra rules automatically apply to arbitrations concerning parenting matters. Because even binding decisions about custody and visitation are subject to court review if it appears that the decision could be harmful to the child, and because such decisions can always be modified at a later date due to a change of circumstances, arbitrators deciding parenting matters must properly record both the proceedings and the arbitrator's factual findings and legal conclusions.
Separating the Roles of Arbitrator and Mediator
Parties sometimes use both mediation and arbitration in divorce, and the same professionals who are trained to serve as mediators are also often trained to serve as arbitrators, as can be found with the lawyers and experienced mediators at Weinberger Law Group. It is important, however, to keep the role of an arbitrator separate from that of a mediator, as New Jersey courts have found that the two roles can conflict. A mediator often engages closely with the parties and receives information in confidence that might not be admissible in a court proceeding. For this reason, a dispute resolution professional should not first serve as a mediator and then assume the decision making role of an arbitrator. In general, mediation should be concluded before moving on to arbitration. Parties engaging either a mediator or an arbitrator should make sure to clearly define the professional's role, the issues presented for resolution, and the procedural rules to be followed, in a written mediation or arbitration agreement, before beginning either procedure.
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