Mediation vs. Arbitration in Family Law

Mediation, Generally

Mediation generally involves a neutral third party, a mediator, who helps separating spouses negotiate and reach their own agreement on issues like parenting, support, and property. The mediator generally doesn't decide the outcome — their role is generally to facilitate discussion and help the parties find common ground, with the resulting agreement generally only binding once it's formalized in writing and signed.

Arbitration, Generally

Arbitration is generally more like a private, less formal version of a court process. The parties generally agree to have a neutral arbitrator hear their positions and make a binding decision, called an award, on the disputed issues. In Ontario, family arbitration is generally subject to specific requirements — including that it be conducted under Ontario law by a qualified family arbitrator, and that both parties generally receive independent legal advice — for the resulting award to be enforceable as a family arbitration award.

The Key Difference: Who Decides

The core distinction generally comes down to who makes the final decision. In mediation, the parties generally retain control and must agree for there to be an outcome at all — if they can't agree, mediation generally doesn't produce a binding result on its own. In arbitration, the parties generally agree in advance to accept the arbitrator's decision, even if one or both parties don't love the outcome, similar in that respect to a court decision.

Can They Be Combined?

Some families use a combined process, sometimes called "med-arb," generally starting with mediation to try to resolve as much as possible by agreement, with any remaining unresolved issues then decided through arbitration — combining the collaborative benefits of mediation with the certainty of a final decision on whatever can't be agreed. See our guide to collaborative family law for a related but distinct process.

Frequently Asked Questions