Mediation is a method of settling disputes outside of court by using the services of a neutral third party, who acts as a communicating agent between the parties and assists the parties in negotiating a settlement. A mediator may be a lawyer, a mental health professional or other professional with mediation training. He or she does not make decisions about settlement terms but rather assists the participants in defining their own settlement. On an issue by issue basis, the mediator will attempt to understand as fully as possible each party’s point of view as well as his and her needs, interests, and priorities. The mediator also assists the parties in understanding each other.

A couple can utilize mediation at any point in their divorce process. Early Stage Mediation can begin before a case is filed and before attorneys are hired. The spouses will meet with the mediator, with or without their attorneys, and systematically work through all the issues that must be resolved in order to achieve closure. If a settlement agreement is reached through mediation, the mediator will put that agreement in writing. Other documents still need to be drafted by the attorneys and filed with the court in order to complete the divorce process.

Mediation may be used in Collaborative cases as well. See Collaborative Divorce, below.

Mediation may also be utilized, even ordered by the court, after a case is filed and while attorneys and parties prepare for trial.

There is also a form of mediation that may occur by agreement or by order of the court shortly before trial. Late Stage Mediation is usually an opportunity for both sides to present their case briefly to a neutral third party who then tries to give each side some insight into the strength of the case and works between the two sides to find a settlement.
A mediator has an equal and balanced responsibility to assist each party and will not favor the interests of one party over the other, nor favor a particular result. If traditional attorneys have already been retained for a court case, they often do not participate in the actual mediation session (Collaborative attorneys, however, usually participate in the session). A mediator cannot represent either party or draft the documents to finalize the case.

If the mediation process breaks down, parties can determine whether to preserve some, all, or none of the agreements that were reached, and ask the judge to decide disputed issues at trial.

Arbitration, in contrast, uses the services of a third party, the arbitrator, who acts as a private judge and who issues a legally binding decision. Arbitration is used in lieu of a trial to obtain a decision in private, often more quickly than would be obtained from the court. Arbitration can also be useful also where a disputed issue is highly specialized and there is an arbitrator who has this expertise. It can be a more economical alternative to an extended trial for parties who simply cannot agree.

Whatever issues the parties agree to submit to arbitration are thus decided by someone other than the parties. Once the arbitrator makes a final opinion and award, it is submitted to a judge to become the Judgment of Divorce. The judge must endorse and enter the award, unless the arbitrator breaks very limited rules.

Please also review the Advantages and Disadvantages of Mediation and the Advantages and Disadvantages of Arbitration.