While many people assume that their divorce issues must be settled in court, there are alternative dispute resolution processes that can be faster, less adversarial, and often less expensive. Two of the most common are family mediation and arbitration. Though they may sound similar, they’re very different in how they work and what they mean for the outcome of your dispute.
This is one of the more common questions I get asked in my practise. Here’s a breakdown of what you need to know:
1. What Is Family Mediation?
Mediation is a voluntary and collaborative process where a neutral third party—called a mediator—helps separating couples reach agreements on issues like custody, child or spousal support, and division of property. The key point: the mediator does not make decisions for you.
Instead, they guide the conversation, help clarify needs and concerns, and assist you in finding common ground. Once an agreement is reached, the mediator may prepare a Memorandum of Understanding (MOU), which each party can then take to their own lawyers to turn into a binding legal document.
In Ontario, family mediation can be private (hired independently) or publicly funded (available through family court services for a lower cost or free, depending on income).
Pros of mediation:
- Less adversarial and more cooperative
- Usually quicker and more cost-effective than going to court
- Helps preserve relationships, especially important for co-parenting
- You stay in control of the outcome
Cons:
- Only works if both parties are willing to compromise
- Not legally binding until turned into a formal agreement
- May not be appropriate in cases involving power imbalances or abuse
2. What Is Arbitration?
Arbitration is more formal than mediation. It’s similar to court but takes place in a private setting. In arbitration, a neutral third party—called an arbitrator—makes a binding decision on your dispute after hearing evidence and arguments from both sides.
Arbitrators are often experienced family lawyers or retired judges.
Before arbitration can begin, parties must sign an arbitration agreement and usually undergo independent legal adviceto ensure fairness. Decisions made through arbitration are legally binding and enforceable in court.
Pros of arbitration:
- Legally binding decision without going to court
- More private and flexible than the court system
- Quicker scheduling and faster resolution
- Arbitrators can be selected based on experience
Cons:
- Can be expensive (arbitrators charge for their time)
- Less collaborative—someone else makes the decision
- Limited right to appeal the outcome
| Feature | Mediation | Arbitration |
|---|---|---|
| Decision-maker | The parties themselves | The arbitrator |
| Legally binding? | Not until turned into a formal agreement | Yes, final and binding |
| Voluntary? | Yes | Yes (but once begun, decisions are binding) |
| Cost | Generally lower, especially if court-based | Higher due to arbitrator’s fees |
| Confidential? | Yes | Yes |
| Formal process? | Informal, flexible | Formal, like a private court |
Which Option Is Right for You?
Choose mediation if you and your ex are able to communicate and are willing to compromise. It’s ideal for couples looking for a cooperative, low-conflict way to work through their issues—especially when kids are involved.
Choose arbitration if you need a fast, private, and binding decision but want to avoid the delays and publicity of court. It’s useful when mediation has failed or when one party is not being reasonable.
In some cases, families use med-arb—a hybrid approach where you start with mediation, but agree that the mediator can switch roles and act as an arbitrator if you reach an impasse.
Final Thoughts
Both mediation and arbitration can help Ontario families resolve disputes without going to court, but they serve different needs. Mediation focuses on cooperation and mutual agreement; arbitration delivers a clear, enforceable decision. Whichever path you choose, it’s crucial to get independent legal advice and understand your rights before making decisions that could affect your future—and your family’s.
If you’re considering either option, consult with a family law professional to help you decide which route is best for your situation.