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Arbitration vs. Mediation: Is Collaborative Divorce for You?

New Jersey Divorce Lawyers | The Micklin Law Group, LLC

In New Jersey, state law dictates the process by which parties can pursue a divorce.  For example, it outlines the particulars of who may be eligible to file, the underlying legal process related to initiating a divorce proceeding, how property is split among the parties, and also, the manner by which child support and custody are ultimately adjudicated.  However, it also provides a number of formalized procedures by which prospective divorce applicants can go their separate ways without the hassles associated with a traditional, more adversarial type divorce.

Specifically, under New Jersey law, individuals are afforded the option to forego the standard divorce route and choose either arbitration or mediation to settle their differences.  However, it is important to consider that the decision to choose one method over another depends upon a number of factors, including how well the parties are able to get along, the end result that each party is seeking, and the amount of money that the parties are willing and/or able to spend to obtain a resolution of their case.  While there are a number of inherent differences between arbitration and mediation, they both have a number of benefits in common, such as the fact that they typically are quicker to resolve, less expensive than a traditional divorce proceeding, and completely confidential.  Notwithstanding, the differences between the two are significant and must be fully considered before choosing which path to follow. Accordingly, it is crucial to speak with a qualified New Jersey divorce attorney to guide you through the process and help you make a decision that best fits your specific set of circumstances.

What is Arbitration and What are the Benefits Associated With this Process?

There are two types of arbitration methods in New Jersey: non-binding and binding arbitration.  With respect to both forms of arbitration, a neutral arbitrator presides over the matter, hears both sides, and renders a final decision.  In binding arbitration, the parties are generally unable to appeal a decision rendered by the arbitrator absent a showing of prejudice or bias.  Conversely, in non-binding arbitration, the parties may appeal their case to a New Jersey trial court however, if the arbitrator’s decision is consistent with the trial court’s ruling, the appealing party may be ordered to pay the attorney’s fees incurred by the party defending the appeal.   In general, arbitration is most beneficial for parties that wish to avail themselves of the substantive finality of an arbitrator’s decision without having to expend significant amounts of money associated with a traditional divorce proceeding.

What is Mediation and How Can it Benefit Me?

Should parties choose to mediate the terms of their divorce, it is essential for them to realize that the mediator’s role is simply advisory.  In other words, it is unlike arbitration where the arbitrator functions more like a judge and renders a final decision over the matter.  Overall, mediation is most beneficial for parties that are able to cooperate with each other and work both inclusively and collaboratively to resolve their case. Moreover, it typically involves less research, paperwork and preparation and also allows the party to be heard, yet in a less acrimonious and time consuming manner.

What are benefits they both share?

There are many benefits in common. Both processes are confidential.  This prevents information about settlement negotiations getting back to the trial judge.  Additionally, there are many issues that parties do not want to discuss in open court or matters that could lead to unwanted consequences.  For instance, if a married couple underreports income for tax purposes.  Judges are required to notify the I.R.S. of any suspected infraction.  However, mediators and arbitrators, if they are not retired judges, do not have the same reporting requirement.

Lastly, all issues, present and future, can be brought to arbitration or mediation.  If the process is sucessful for you, you are able to use this forum for future issues.  You may need to review or modify child support; there could be custody and relocation issues and the like.  New Jersey Family and Divorce court are unable to address issues such as these as quickly as arbitration or mediation.

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