Arnold Swartz and Associates

Business and Family Mediation

720 Kipling St., Suite 200 • Lakewood, CO 80215 • TEL: 303-237-4828 • aswartz@mediate.com

Mediation-Arbitration

Mediation-Arbitration (med-arb) combines the processes of mediation and arbitration, utilizing the same person to serve as mediator and arbitrator. If the parties are not able to agree on a resolution in mediation, the med-arbiter is empowered to make a binding decision. The arbitration is conducted according to the provisions of C.R.S. 14-10-128.5, which authorizes an arbitrator to make final binding decisions regarding child-related matters. When arbitration begins, either party has a right to make the process as formal as he/she wishes. The range of formality is from providing no further information to the med-arbiter beyond what was discussed in mediation to having an actual hearing in which each party and/or one’s attorney presents evidence, witnesses and/or arguments on their behalf. Most people chose to proceed in a more informal manner. At the completion of the arbitration process, the med-arbiter will issue a written arbitration award which is sent to the court.

Arnold Swartz and Associates offers med-arb for post-decree child-related matters. This service is best suited for post-decree disputes because people who are co-parenting do not always have a forum for reaching a decision when they are at a stalemate. Mediation alone may not break the impasse. The cost and time needed to get a hearing in court can be prohibitive relative to the issues at hand. Med-arb provides parents with an opportunity to reach their own solution, while at the same time guaranteeing that a timely decision will be made. We find that arbitration is only needed about ten percent of the time as most parents make an agreement during the mediation phase.

The most frequent types of issues that people submit to med-arb are: choice of a school, changes in the parenting time arrangements, holidays, vacations, health care, and religious training. We will address any issues in med-arb with the exception of decisions regarding a major change in parenting time, a change in decision making responsibility or moving out of state.

Med-arb can be utilized by parents who have shared decision making responsibility as well as in situations in which one parent has the sole decision making authority. It has been effective with parents at different points along the conflict continuum, from those who usually work well together but occasionally reach an impasse to those are constantly in conflict. Resolutions can be reached in a manner that minimizes the destructive effect of the ongoing conflict on the children and on the co-parenting relationship.

The duration of the med-arbiter’s appointment varies. It can be an indefinite period of time or a specified period. The latter can either be until the immediate issues are resolved or for a certain amount of time. Usually, the appointment ends if the med-arbiter chooses to withdraw, the parents agree to select a new med-arbiter or an order of the court.

Med-arb has advantages and disadvantages. It provides parents with a timely decision, whether their own or that of the med-arbiter, without having to go to court. However, it is harder to appeal a decision made by an arbiter than one made by a judge. At the same time, one is unlikely to appeal a judge’s decisions about the types of issues described above. Also, the mediation phase of med-arb feels different than mediation alone, primarily because one responds differently to questions asked or suggestions made by the med-arbiter when you know that he/she has the ultimate decision making authority.