Why is Family Law Mediation or Family Law Mediation/Arbitration often superior to resolving family law disputes through the Court? The answer lies in three key advantages: it’s faster, cheaper, and better.

Faster Resolution

• Courts are busy with heavy caseloads, making the court process lengthy and slow
• Mediation/Arbitration can be completed and decisions issued as quickly as the spouses and Mediator/Arbitrator are available
• No waiting for court dates or dealing with adjournments beyond the parties’ control

More Cost-Effective

• Courts follow a “one process fits all” approach: formal, procedural, and document-heavy

In mediation or arbitration, spouses and the mediator/arbitrator tailor the process to their specific needs.

• Procedures can be as brief or detailed as agreed upon (while maintaining procedural fairness), significantly reducing legal costs
• Reduced lawyer fees due to streamlined processes and shorter timelines

Superior Outcomes

Family Law Mediation and Mediation/Arbitration offer several qualitative advantages over court proceedings:

Enhanced Involvement and Control: Spouses have very limited control over court processes. In Mediation/Arbitration, they have direct input in choosing the decision-maker, establishing the process, and influencing outcomes (while the Arbitrator retains final decision-making authority when necessary).

Consistency with One Decision-Maker: In court, spouses may appear before many different Justices as their matter progresses. In Mediation/Arbitration, one person hears and decides all issues, developing a comprehensive understanding of all aspects of the dispute.

Creative and Practical Solutions: Court decisions often result in “winner-take-all” outcomes. Mediation/Arbitration allows spouses to work with their Mediator/Arbitrator to craft agreements or decisions that are more practical, creative (“thinking outside the box”), and mutually beneficial (“win-win”) solutions tailored to their specific circumstances.
Privacy and Confidentiality: Unlike court proceedings, which are public record, Mediation/Arbitration processes are private and confidential, protecting family privacy during vulnerable times.
Qualifications and Training
Qualified Mediator/Arbitrators typically include:

• Senior family law lawyers with specialized training in mediation and arbitration
• Retired judges with family law experience
• Professional mediators with family law expertise and arbitration certification

Professional Standards

Mediator/Arbitrators must adhere to:

• Professional conduct standards established by their governing bodies
• Continuing education requirements in family law and alternative dispute resolution
• Ethical guidelines regarding conflicts of interest and impartiality

The Process:

Phase 1: Mediation

1. Joint retention of qualified Mediator/Arbitrator
2. Signing of Mediation/Arbitration Agreement outlining process and scope
3. Information gathering and disclosure of relevant documents
4. Mediation sessions to facilitate negotiation and communication
5. Documentation of agreements reached through mediation

Phase 2: Arbitration (if necessary)

1. Transition to arbitrationfor unresolved issues
2. More formal process, including evidence presentation
3. Arbitration hearingwith witness testimony if required
4. Arbitrator’s Awardissued with binding decisions
5. Filing of Awardwith the Court for enforcement

Limitations and Considerations

Voluntary Nature

Family Law Mediation and Mediation/Arbitration are voluntary processes. If both spouses do not agree to participate, court proceedings remain the only alternative for resolving family law disputes.

When These Processes May Not Be Appropriate

• Cases involving domestic violence or power imbalances
• Situations with significant mental health concerns affecting decision-making capacity
• Complex corporate or business valuation issues requiring specialized expertise
• Cases requiring urgent interim relief or protection orders

Legal Representation

While parties can participate without lawyers, Independent Legal Advice is strongly recommended:

• Before signing the Mediation/Arbitration Agreement
• During the process of complex legal issues
• Before finalizing any settlement agreements

Cost Considerations

Typical Fee Structure

• Mediator/Arbitrator fees: Usually charged hourly, shared between spouses
• Reduced legal fees: Due to streamlined process and shorter timelines
• Administrative costs: Minimal compared to court filing fees and related expenses

Cost Comparison with Court Proceedings

While individual circumstances vary, Mediation/Arbitration typically costs significantly less than protracted court litigation due to:

• Faster resolution timelines
• Reduced lawyer involvement
• Streamlined procedures
• Single decision-maker efficiency

Enforceability of Agreements and Awards

Mediated Agreements

Agreements reached through mediation can be:

• Incorporated into Consent Orders by the Court
• Formalized as binding contracts between the parties
• Filed as Court Orders for enforcement purposes

Arbitration Awards

Under the Arbitration Act, arbitration awards are:

• Final and binding on the parties
• Enforceable as Court judgments once filed
• Subject to very limited grounds for appeal or setting aside

Conclusion

Family Law Mediation and Mediation/Arbitration are not the only ways to resolve family law disputes following separation and divorce, but they represent superior alternatives to traditional court proceedings in most circumstances. These processes offer greater control, faster resolution, reduced costs, and more creative outcomes while maintaining the security of binding decisions when necessary.

The choice to use these alternative processes is voluntary – both spouses must agree to participate. However, for couples willing to engage in collaborative problem-solving with professional guidance, Family Law Mediation and Mediation/Arbitration provide an effective, efficient, and dignified path through the challenges of family restructuring.