Mediation and Arbitration: An Overview

Successful decision of a legal problem

TV shows and movies often dramatize the legal system, leading people to think that heated exchanges under oath on the witness stand are necessary to resolve every legal situation. While those depictions may reflect what happens in some high profile criminal proceedings, they do not accurately reflect options for resolving civil matters, including those that fall under Colorado Statutes.

The fact is that many family law cases do not require entering a courtroom because many conflicts can be resolved through the processes of mediation and/or arbitration.

Procedural Differences

Mediation and arbitration are both strategies for conflict resolution that involve a specially-trained third party or parties. However, the processes by which conflict resolution is sought differs considerably.

Mediation seeks to resolve conflicts between parties through more conversational negotiations. During mediation, communication is facilitated by a neutral mediator who aims to uncover any miscommunications that may impede negotiations and help the parties work toward a mutually agreeable settlement. Mediation may be voluntary or court-ordered, but it is not legally binding. If no resolution is achieved or one party is not satisfied with the proposed resolution, parties still have the option to pursue the matter further through arbitration and/or litigation.

Arbitration bears more similarities to litigation proceedings than mediation. Conflict resolution is facilitated by a single neutral third party or by a panel of neutral parties. Arbiters usually have extensive experience in the area of legal practice—family lawyers, former judges, etc. may be arbiters in divorce and/or custody cases, for example. During arbitration, evidence is presented and testimony taken, much like a deposition or litigation hearing. Once both parties have presented their cases, the arbiter(s) renders a decision, which is usually legally binding. (Binding arbitration is much more common than non-binding arbitration, which gives parties the option to appeal the determination before a judge).

Relative Benefits

Mediation and arbitration are both options that can allow parties who have reached an impasse to resolve their conflicts before going to court. By not going to court, parties may save thousands of dollars in legal fees and, when children are involved, may mitigate the emotional toll of the divorce and custody battle experienced by the kids.

When emotions run high and parties are embittered toward one another, arbitration may be preferable to mediation precisely because conflict resolution depends less on hostile parties effectively communicating with one another; rather, they present their cases and have discussions with an impartial party or panel.

Because arbitration is legally binding, there is no need for a final orders hearing. If mediation fails to produce a mutually agreed upon resolution, on the other hand, parties may proceed to a contested final orders hearing, but during that hearing, there is no opportunity for back-and-forth discussion with the judge making the determination. A judge simply hands down a legally-binding determination that may be less favorable to both parties.

If you are seeking a divorce and/or pursuing child custody in Colorado Springs, it is important to get a family law attorney who is familiar with all options for conflict resolution and one who is committed to the best interests of his clients. When you hire a well-qualified and highly experienced Divorce and Family Law Attorney, the lawyer should also know which Mediators/Arbiters have a proven record of settlement negotiations.  This is another reason for hiring the very best lawyer you can find.

Gordon N. Shayne has extensive experience in Colorado family law, and his goal is to always help his clients most efficiently reach a favorable determination, which often involves arbitration. Mr. Shayne advocates for conflict resolution that spares his clients unnecessary expense and spares children and parents unnecessary stress.

For expert family law counsel, contact the Law Office of Gordon N. Shayne.