Mediation or Arbitration – Which Shoe Fits?

Do you want to try to settle your matter but don’t know what to choose – Mediation or Arbitration? Which of these is a good fit and appropriate for your matter? In this article we will inform you of the differences between these two approaches.

Mediation

Mediation is a dispute resolution process where the parties are assisted by an independent third party to help them reach agreement. Parties may agree to attend mediation to resolve financial and/or parenting issues. Mediation can be done prior to commencing proceedings or can be ordered by the Court.

In mediation, the mediator acts as an independent third party and facilitates the discussion between the disputing parties. The mediator will generally explain how the mediation will take place, ask the parties questions to identify the issues in dispute and then help develop options to resolve the dispute. You can have a Solicitor present with you if you wish.

Some of the key advantages of mediation are as follows:

• it is less formal and more cost effective than arbitration or litigation;
• everything that is said during mediation is confidential;
• it is relatively inexpensive when compared with litigation or arbitration; and
• it happens over a relatively short space of time.

The disadvantage of mediation is that no party is obliged to reach an agreement and it is not guaranteed that the matter will be resolved. If a party is not being reasonable or providing input, the mediation may not proceed very far and be terminated. If an agreement is reached at mediation, it can be formalised by way of a Parenting Plan or Consent Orders.

Arbitration

Arbitration is a process of dispute resolution where parties provide evidence to an independent adjudicator who then makes a binding decision on the issues in contention. Arbitration is quite similar to Court litigation except it takes place outside of Court.

The parties choose the Arbitrator. Arbitrators are experienced legal practitioners who are specially trained and accredited in arbitration. Each party is still required to file their documents including Affidavits.

The advantages of arbitration are as follows:

• it offers a more flexible approach compared to Court litigation;
• it is more efficient and can be finalised in a shorter time frame than Court litigation;
• it guarantees the resolution of the matter, and the decision can be registered with the Court; and
• it is also confidential.

The disadvantage is that although arbitration is efficient, it can still be a little expensive as you are still required to pay legal fees and the arbitrator’s fees. Another disadvantage is that parenting matters will not be dealt with by way of arbitration, only property matters.

Now that you know the differences, we hope you can make an informed decision as to which fit is better for you.

If you would like to discuss the best option to resolve your matter, please contact Solari and Stock on 8525 2700 to speak with one of our experienced Family Law Team or click here to request an appointment.

Article by Shweta Kumar
Photo by Tim Mossholder on Unsplash