Wednesday, July 8, 2009

Is Divorce Mediation the same as Divorce Arbitration?

Most individuals can’t differentiate between divorce mediation and arbitration. Recently, the Star Ledger in its July 2, 2009, front page headline further confused the issue and the general public by stating, “Court OKs Mediation in Custody Disputes”. The article begins declaring that, “Couples getting a divorce can bypass judges and use mediators to determine who gets custody of their children, the state Supreme Court said yesterday.” Actually, the case decided by the court, Fawyz vs. Fawzy, is about the ability of a divorcing couple to utilize an arbitrator to decide custody and visitation rights. The use of divorce mediators by a divorcing couple has been permitted prior to this case.

While NJ Family Law & Divorce Mediation is obviously concerned with New Jersey families, divorce mediation is a universal process of a neutral third person who works with and engages the couple to talk to each other so that a compromised settlement can be achieved. The skilled divorce mediator assists the couple in identifying the issues, possible solutions and facilitates discussion regarding assets, liabilities, alimony, child support, custody and co-parenting. In mediation, the couple maintains control over their future. A divorce mediator does not decide the issues for the couple. Divorce arbitration, by contrast is a process similar to a trial. The arbitrator takes the place of a judge hearing witnesses testify and reviewing submitted evidence. At the conclusion, the arbitrator decides the case. In divorce arbitration, the divorcing couple loses control of their future as a third person decides the issues for them.

In the Fawyz case, the couple could not agree on custody or visitation schedules. The case was lingering in the court system for 17 months before it came before the judge for trial. However, on the trial date, there were some scheduling conflicts and as a result, the couple and their attorneys informed the judge that they agreed instead to divorce arbitration. After a divorce arbitrator was selected and the arbitration commenced, the husband sought to stop the arbitration process. His initial attempt to forestall a divorce arbitration decision failed. The divorce arbitrator subsequently ruled in favor of the mother awarding her as the residential custodial parent with joint legal custody. Again, the husband sought the court to nullify the divorce arbitration. Additional litigation ensued through two additional appeals. Approximately three and one half years after the divorce litigation commenced, the court rendered its verdict. The Supreme Court opined that the husband did not realize when he agreed to arbitrate that he was giving up his right for a trial. The court indicated that since the decision to arbitrate was not reduced to writing and certain safeguards were not in place, the divorce arbitrator’s decision was invalid. The case was then sent back to the trial court to decide anew on the custody and visitation issues.

Divorce mediation is by far the better approach and costs less than divorce arbitration. In addition, the most important aspect is that the couple doesn’t relinquish control. An agreement reached through divorce mediation is far less likely than an arbitration award to be appealed.


  1. You were true.
    I had the problem to differentiate between
    divorce mediation and arbitration.
    But your comprehensibility helped me.
    Family law companies