Is It Better to Litigate a Divorce or Try Mediation and Arbitration?

Angela Princewill

November 7, 2019
Divorce Lawyer Toronto

Some parties assume they have to jump right to litigation if they are not in agreement or the divorce is contentious. Resolving outstanding issues, such as child support or the division of matrimonial property can be handled by using one of three methods or a combination thereof: Mediation, arbitration, and litigation.

While it is certainly your choice to use litigation and not attempt the other two methods, it is not always in your best interests. Litigated divorces cost more and can take longer to resolve. Furthermore, the judge will make all decisions for the divorcing couple which are final. As such, litigation should only be used as a lastresort to resolve a few outstanding issues, but not every issue.

What Is Mediation in a Divorce Proceeding?

Mediation is where the couple attempts to negotiate and come to an agreement on various matters in creating the divorce agreement. For mediation to work, both parties must be open to negotiation and compromise. The mediator is not able to order a settlement like an arbitrator or judge.

Their objective is to try to get each party to agree on any outstanding issues. In a contentious divorce, mediation does not require the couple to go to court. Instead, they chose a mutually agreed upon location, like the mediator’s office.

Additionally, they do not have to be in the same room as the mediator. Each person can be in a separate room and use their respective divorce attorneys to negotiate through the mediator on their behalf.

What Is Arbitration in a Divorce Proceeding?

Arbitration is similar to mediation with a few key differences. The arbitrator will listen to arguments presented by each party about outstanding issues. The arbitrator will then decide on the matter, similar to how a judge makes their decision.

Sometimes the couple can use the same person for their arbitrator who served as the mediator. The couple must also pay the arbitrator. Yet, using an arbitrator also prevents the couple from having to appear in court, can be speedier to resolve issues, and cost less in legal fees.

What If My Spouse Is Not Willing To Negotiate or Has Unreasonable Demands?

In cases where one party refuses to negotiate or is willing to negotiate but their demands are unreasonable, mediation may not be your best option. Arbitration could be a viable solution since the arbitrator performs a role similar to a judge. If they refuse to participate in the arbitration process, then litigation is necessary.

Both arbitrators and judges will be more favorable when one party is open to negotiate and compromise, compared to the other party, who contests every proposal or has unreasonable demands.

If you need any help with family law matters, contact AP Family Law Firm in Scarborough, Pickering, Markham, and Toronto. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.