An Alternative to Mediation and Litigation/Martin Rosenfeld, JD

Posted on November 30, 2014

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Mediation is a most positive alternative to litigation. It is less costly, faster, and less traumatic. However, even in a good mediation, there may be issues which do not lend themselves to easy resolution through mediation. Let us take the situation where a couple facing divorce has 15 issues to resolve. They have resolved all but one or two issues. What happens to the issues that are still in dispute? One possibility lies in the decision to have arbitration that is binding upon both sides. The issue under controversy is assigned to an expert in the field of the disagreement and once the decision is rendered both sides have already agreed to be bound by the order of the arbitrator. Doing so is still less contested and less costly than is the process of retaining attorneys to litigate the matter in a court setting.

A recent post at Huffington Post described the arbitration process as it exists in the United Kingdom. The following narrative appears in this context:

“Arbitration is a fantastic tool for resolving issues where there is an agreement on most things but perhaps just one sticking point. However it can also be used where no agreements have been reached. Solicitors and mediators should understand the importance of family law arbitration and should always consider it as an option for their clients. As the courts grind to a standstill through financial cuts, the withdrawal of most legal aid and years of under-funding, it is becoming increasingly difficult for separating couples to resolve their issues quickly and efficiently. Arbitration is flexible. It can be used by litigants who are legally represented and those who are not. It can be a lot less formal than going to court and it can be used to resolve a single financial issue or all financial issues. There is still a degree of ignorance amongst solicitors, barristers and mediators about Family Arbitration and a mistaken view that Arbitration is just for rich people. That is not the case and ultimately it can actually work out cheaper than going to court as the parties have much more control over the process. Unfortunately family Arbitration cannot be used to resolve disputes over children.” Nadia Beckett, Beckett Solicitors

Whether arbitration is through a professional organization, through a religious Court such as a Beth Din, or through agreement on impartial fact-finders to be chosen by all sides to the controversy, arbitration is an effective alternative to mediation. Where there is no mediated resolution, nor finding by an arbitration panel, litigation becomes the only alternative to move the process along. The situations where litigation is a preferred means of resolving a dispute are few and far between.

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