Mediation: not meditation, not medication, and definitely not arbitration

confusing apples and oranges - mediation is not arbitrationYesterday the New Jersey Star-Ledger reported that the state’s Supreme Court “OKs mediation in custody disputes“.

The problem with the story is that the New Jersey Supreme Court did nothing of the kind. Instead, it held that parties to a matrimonial action can submit questions relating to child custody and parenting time to binding arbitration (PDF).

Was this confusion in reporting the result of careless journalism? No doubt. But this also tells me that the ADR field still has plenty of work to do in terms of public education and awareness. Arbitration and mediation are not concepts to be used interchangeably. One is not a synonym for the other. They serve different purposes and produce different outcomes. And we need to help the public – our prospective clients – understand that.

Hat tip to Jim Melamed, Mediate.com‘s CEO.

7 responses to “Mediation: not meditation, not medication, and definitely not arbitration

  1. WHAT??? I am really much more concerned that the issue of what’s best for a child in a custody proceeding is being diverted into a private “justice” system. What issues other than the best interests of (unrepresented) children could possibly be more resonant of the public interest and needful of public proceedings? My own socio-economic and ancestrally privileged position in society acknowledged, how much justice can we expect from a largely upper-middle class white male private adjudicative system, particularly for non-mainstream parents, i.e., the GLBT community? Shouldn’t there be a little outrage here or have I not thought the thing through? Maybe the journalistic confusion resulted from the reporter’s inability to “process” the gravity of the decision reported upon.

  2. That’s a separate issue, Vickie. I was concerned solely with the confusion over nomenclature and not the rights or wrongs of this particular decision.

    Now that you mention this other, graver issue, however, I must say I share in part your concern. I think it’s one thing to permit divorcing couples to arbitrate disputes arising out of the division of assets and debts (although I still think that a court should have the right to review an arbitrator’s decision, and I would be deeply troubled by the use of arbitration in cases in which domestic violence is present). But it’s another entirely to turn over decisions involving children to a private forum for decision making, and I’m not terribly reassured by the court’s standard of review (although I’d like to hear a matrimonial lawyer from New Jersey weigh in on this).

    Nonetheless, I think my point about public education remains relevant, Vickie. I wonder to what extent people understand what binding arbitration signifies and what rights they give up when they consent to it. Many people, this journalist included, understand only imperfectly what arbitration is, let alone the nuances and differences that distinguish various forms of ADR.

    Thanks for raising this additional point, my rabble-rousing friend!

  3. Didn’t mean to diminish your point; just charged ahead as is my wont!

  4. No worries, dear friend. You raised an important point, for which I am most grateful. ;)

  5. Pingback: Education still needed … « hesketh mediation

  6. I had this problem with my first ever article, front cover of the journal advertised “Why lawyers should use medication”. After checking it wasn’t my error (it wasn’t!) I saw the funny side but it does illustrate the point. You can see it here http://heskethmediation.com/2009/07/13/education-still-needed/

  7. Philip, damn, that’s funny! I definitely know a few lawyers who need to be medicated.

    By the way, someone needs to let spammers know there’s a big difference between mediation and medication – I’ve got one email account associated with my old blog, Online Guide to Mediation, that continues to be inundated with spam related to medication and the medical profession. Maybe some day those guys will learn to spell.

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