Washington Business Daily

What about mediation followed by arbitration?

I'll be going for mediation with binding arbitration regarding my divorce agreement. Am I correct that the parties can discuss all kinds of novel agreements during the mediation, but that if an issue goes to arbitration, the arbitrator will rule on the interpreting the original agreement? What if the parties are discussing a new, previously uncovered topic, and they fail to agree, can the arbitrator impose one of the proposals?

Public Comments

1. Mediation is a nonbinding meeting between the parties in an effort to resolve a dispute. Whatever comes to mind may be discussed in that effort. Arbitration is the same as a trial with respect to the issues, pleadings and evidence, it just takes place in front of an arbiter instead of a judge or jury, and is binding and is not subject to appeal. You can't really do both arbitration and mediation together.
2. It's true that you are free to reach agreements in mediation that are far reaching, novel and beyond anything that you could get in arbitration or after an evidentiary hearing before a judge. You need to review the rules for your binding arbitration very carefully and follow them. There will be limitations to the outcome that are generally determined by the pleadings and divorce law as it is applied to the facts presented during the arbitration.
3. Mediation provides a framework for working through to a settlement. Binding Arbitration allows one or several non-judges to, in essence, try you case as if it were a court. Courts and arbitrators are limited in the kinds of things they can consider and the types of rulings they can make. However, the court will typically confirm an agreement of the parties reached in mediation, even if the agreement is something they could not have ordered or considered. Most mediators require the parties to sign non-disclosure agreements, and topics discussed in mediation or settlement are generally not admissible in proceedings before a judge or before arbitration panels.