What is Arbitration?
Arbitration is a way to resolve your divorce out of court. Given the current backlog and shortage of judges, it is something people with family law issues should give serious consideration to utilizing in resolving their matters.
How Does Arbitration Work?
By agreeing to arbitration, the parties agree to waive their right to trial before a judge. Instead, the parties select a neutral professional, usually a highly experienced family lawyer or retired judge, to decide their issues. The object is to allow parties to have their issues privately resolved in the manner they choose, with no interference from the court.
The following is a list of the general steps in arbitration, although these steps change from case to case and may not all be listed:
- Reaching agreement to arbitration– The parties must first agree to arbitrate their dispute(s) and sign and arbitration agreement setting forth the issues to be decided and all the terms of arbitration.
- Selection of the Arbitrator– The parties and their attorneys agree upon the person or persons who will decide their dispute(s).
- Preliminary Meeting– The arbitrator will schedule a meeting with counsel to discuss the issues in dispute and how they will proceed with discovery or anything else needed before the arbitration hearing.
- Hearing– The hearing is a private trial where the arbitrator will listen to opening statements by the attorneys, testimony of the parties and other witnesses consider written evidence and hear from experts.
- Award– This is the arbitrator’s decision on the issues submitted for them to decide. The award is usually in writing and summarizes the proceedings and then sets forth the decision and the basis for the decision.
Some Advantages of Arbitration
- Ability to Choose the Decision Maker– The parties have the ability to select the person who will decide the matter for them. For example, the parties can choose a forensic accountant to arbitrate the issue of the value of a business, or a forensic psychologist to arbitrate custody or parenting time as part of the arbitration panel if that is an issue.
- Efficiency – Arbitration can usually be scheduled with a decision rendered much faster than can be done through the court. Parties can agree to submit singular discreet issues to arbitration, which, if resolved more quickly than going to court, will help to resolve the remainder of their issues.
- Cost — The arbitration hearing, particularly of one issue, will be shorter in length, take place on consecutive days and not over months and the preparation work will be less demanding. all resulting in a lower cost for the parties.
- Privacy– Arbitration hearings are private and confidential. There is no court record, and the public is not permitted to attend. Also, final awards are not usually filed with the court, therefore remaining private.
- Convenience– Because the proceedings are not being held in court, you can have the arbitration take place at times and locations most convenient to the parties, arbitrators and witnesses.
- Flexibility– The parties can agree to shorten, forgo or simplify any step in the process they choose depending on the circumstances.
- Finality– There is, in general, no right of appeal in arbitration. (Although, the court has limited powers to set aside or remit an award). So, once an award is made, the litigation is over.
Some Drawbacks of Arbitration
- Cost – If the matter is particularly complex or the parties agree to use a panel of arbitrators, it can be costly. However, that must be weighed against the ability to resolve the matter more quickly and with finality.
- No Appeal– There is generally no review of the arbitrator’s decision. Thus, the losing party must live with the decision.
It can be a long process for the courts to hear matters. Even motions are not being heard quickly, and lawyers and litigants have no control of the court’s schedules. So, if you want your family matter resolved quickly and efficiently, even if it is just a motion or limited issue, arbitration is most likely right for you.
