If parents cannot come to an agreement resolving their custodial issues, they may try to resolve them through methods of Alternative Dispute Resolution (ADR) such as mediation or arbitration. While arbitration and mediation are more commonly used in a formal litigation process, they can also be used before litigation begins to help the parties resolve their dispute in a manner that is less stressful, less expensive, and more quickly resolved. It also gives the parties greater control over the outcome. Arbitration and mediation both employ a neutral third party to assist the parties to resolve their dispute, but differ in the role that the third party plays. Regardless of the form of ADR used, the assistance of an attorney is still needed to ensure that your legal rights are being adequately protected.
In arbitration, one or more arbitrators acts as a judge, and following an informal hearing, gives a written opinion which resolves the contested issues between the parties. Before arbitration is commenced, the parties agree upon the rules to be used, including the format of the hearing and whether the ruling of the arbitrator is to be binding or non-binding. In comparison, mediation involves a neutral third party who attempts to facilitate an agreement between the parties. The appointed mediator tries to get the parties to come to a mutually agreed-upon resolution, but has no authority to force any of the parties to settle and the mediator does not issue an opinion or ruling of any kind. Unlike arbitration, a mediation sometimes does not produce an agreement and the parties are left to take further action to resolve the dispute. In private mediation, your attorney will accompany you and provide guidance as well as to draft any agreements that are reached. A mediation can be completed in one day, and by working together to reach a resolution the parties can set the tone for how you will co-parent moving forward.
Agreements entered into through ADR such as arbitration or mediation often set forth mechanisms that allow the parties in the future to modify the existing agreement. The agreement would set forth the circumstances and manner in which the agreement could be modified. It is important to remember that unless this agreement is made part of an official court order, the parties could not seek to have the court modify it at a later date. Instead, as set forth below, the parties would have to seek an initial custody determination with the court.