Divorce Mediation & Arbitration: Finding the Right Answer Without Trial

Only a family court judge can dissolve a marriage and enter a Judgment of Divorce. But that doesn’t mean you have to go through the time, expense, and emotional costs of trial to get there. Alternative dispute resolutions, like facilitated mediation and arbitration, allow the parties to find the right answer to child custody, support, and property distribution issues without laying everything out publicly in front of the judge.

What is Mediation?

Mediation is a formal negotiation process that helps the parties come to a resolution they can live with. The parties may or may not also have attorneys. They meet with a domestic mediator who is specially trained to help the parties work toward compromise. Often the mediator will help advise the parties what the law is and how a judge might rule if their case goes to trial. But the parties, not the mediator have the final say. It may take multiple several hour sessions to resolve everything, and sometimes, though rarely, the parties walk away from mediation without a settlement agreement.

What is Arbitration?

Arbitration is kind of like hiring your own private judge. the parties’ attorneys select a trained arbitrator who may have specialized expertise to handle certain technical issues in the case. The parties will sign an agreement to arbitrate that specifically states which issues they want the arbitrator to address. It could be restricted to one tricky issue — like the distribution of a family business — or they could ask the arbitrator to handle the entire case. They then submit records, evidence, and arbitration briefs that lay out the legal arguments to be resolved. Depending on the arbitrator, everyone may or may not be required to appear at a hearing. Then the arbitrator will review everything and issue a binding decision. He or she has the final decision, not the parties. Whatever the arbitration ruling says will be final, even if neither party likes it.

Why Use Alternative Dispute Resolution?

Alternative dispute resolution (ADR), including mediation and arbitration, has gained popularity over the last few decades. Now, most family law judges automatically refer cases to mediation unless circumstances say it isn’t appropriate (including the presence of domestic violence or a personal protection order). There are very good reasons to prefer ADR over a trial to resolve your family law matter:

ADR is Private

Family law inherently deals with some very private issues. Mental health, infidelity, financial problems, and addiction are all on the table. But anything filed with the court becomes part of the public record. Strangers, or even your children could read the documents and watch the videos of your hearings revealing all the worst parts of your lives. ADR is private. Everything told to a mediator or arbitrator is confidential (in fact it is inadmissible in court), so your family’s dirty laundry stays private.

ADR Is Often Faster

Family courts are busy places. In Wayne County it can take 6 weeks just to get a court hearing. Trials often spread out over months and push the court to the one-year limit. If you want to resolve your divorce faster and move on with your life, ADR can help you do that. Many mediators’ schedules are more flexible than judges, so you can get in faster. Arbitrators have smaller dockets than the courts, so they are able to render decisions more quickly.

ADR Can Be Cheaper

If you or your ex don’t have a lot of money to spend on attorney fees, certain kinds of ADR can help trim the costs. You will have to pay the mediator or arbitrator for their time, but many domestic mediators will meet with the parties directly (without attorneys). Even when everyone comes to the table, the money spent on ADR is often still less than the cost of extensive discovery, motion hearings, and trial.

Mediation Puts the Parties In Control

No one can know what is certainly the best for your family in a few short hours. Even when the law is applied 100% correctly, judges can make your life inconvenient or fail to consider certain practical issues in making their determinations. Can dad really pick the kids up from school on Wednesday afternoons to start his week of parenting time, or would a 6pm start time be better? Does giving mom 100% of the 401k leave her with enough disposable income to make a down payment on a house, or would it be better to give her a larger share of the savings account instead? Facilitated mediation puts the parties in control and makes it more likely that these practical considerations will actually be considered, so the resolution is something you can live with.

Will the Judge Honor Your Agreement?

If you spend the time and effort to go through ADR and reach a settlement agreement or arbitration decision, the last thing you want is for a judge to unravel that hard work and enter a different order. Fortunately, Michigan law makes doing so difficult for judges. Two recent published Court of Appeals cases show what happens to settlements when the court gets involved:

In Eppel v Eppel, a hotly contested divorce spilled over into a half dozen post-judgement enforcement motions on parenting time, child support, and alimony (spousal support). They decided to take everything to arbitration. But after the arbitrator made a ruling, the judge overhauled the decision on spousal support. The Court of Appeals said as long as the arbitrator was acting within the parameters of the law, and don’t exceed the scope of the agreement assigning the case to them, that decision is final.

Rettig v Rettig had to do with facilitated mediation, and buyer’s remorse. In that case, a husband asked the Court of Appeals to rule the trial court had improperly entered a Judgment of Divorce based on a mediation settlement. The trial court assumed that the parties answered honestly when they signed a settlement agreement saying the custody and parenting time were in the best interests of the children. The Court of Appeals said the court does have the discretion to overturn an agreement that is clearly not focused on the children, but it can rely on the parties’ resolution. In practice, most judges do.

Alternative dispute resolution is a key part of modern family law. Explaining what your options are and why it may be beneficial to use them are important parts of any family attorney’s job. Creative use of these ADR options can save you time, money, and embarrassment by skipping the trial and letting you move on with your life.

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps families and parents with divorce and custody disputes. If you are facing a family law problem, contact Schmidt & Long today to schedule a consultation.