Dear Cassie: What is the difference between mediation and arbitration?

Dear C.K.:

Both mediation and arbitration are different forms of what is called “alternative dispute resolution.” Alternative dispute resolution simply refers to ways to resolve your case aside from the traditional court system.

Mediation is a forum to attempt to settle your case. The mediator is a neutral third party who helps to guide the parties to a fair settlement. The parties can voluntarily elect to attend mediation, or it can be court-ordered. The mediator does not and cannot make decisions in your case. The parties can choose to attend the mediation with counsel present, or without. However, the mediator does not and cannot represent either party. The mediation process is confidential. That means that the mediator cannot tell the judge assigned to your matter, or anyone else, about what happened in the mediation session. The parties also cannot so use the mediation process as evidence in their case.

In contrast, arbitration is essentially a private court proceeding. The court cannot compel arbitration. If the parties agree to attend arbitration, they are waiving their right to have a trial judge in the Superior Court of New Jersey decide their matter. The parties mutually select and hire the arbitrator, who could be a retired judge or matrimonial lawyer. The parties decide whether the arbitrator’s decision in their case is binding and final; they can also select an appellate arbitrator of their choosing.

Both mediation and arbitration provide alternatives to advancing your case in court. Recent news headlines have made clear the lack of judges being appointed to the bench, and the strain on the judicial process which has resulted. Litigants in the court system throughout the State of New Jersey are facing unprecedented delays and backlog. For these reasons, many litigants are giving serious consideration to alternative dispute resolution in the interest of bringing about a prompt closure to their case.

If you are considering dispute resolution alternatives, you should seek the advice of matrimonial counsel.

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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.