Divorce Arbitration I have recently begun a family law case in front of an arbitrator. Actually, in my case, we are not beginning a case but rather removing the case from family court to arbitration. This blog will go over what is arbitration, how it works, how much it costs and who pays, the procedures involved, advantages and disadvantages of using binding arbitration.
What is Arbitration?
Arbitration means hiring a private judge. Most often this person will be chosen by the parties and will be a very experienced attorney or former judge. The Arbitrator will make binding decisions regarding your case and can be given jurisdiction over all issues or some issues within your case.
How much does it cost and who pays?
Since arbitrators are private individuals who do not work for the court, the parties pay them direct. The cost varies per arbitrator and can be an hourly arrangement, a flat fee, or a fee per day arrangement. You will need to work with the opposing party and the arbitrator to determine how much it will cost and who will pay the bill.
Is the court involved at all?
If there is a pending case, you will submit a stipulated motion and order to send the case to binding arbitration. By signing the order, the court has given jurisdiction to the arbitrator and the arbitrator will provide a written ruling to the court that will become part of the record. If there is no pending case, parties could conduct arbitration and then open a case in superior court after the completion of arbitration. The agreement to enter binding arbitration and live with the outcome would become an enforceable contract within the court’s system.
Advantages of Arbitration:
- Control
Using an arbitrator gives you MUCH more procedural control over your case. You can set a schedule that works for you. You can require them to issue a ruling within a certain period of time. You can call an emergency hearing when you need one. You can determine what the rules of evidence will be, how the presentation of witnesses and evidence will be conducted, how much time you have to present your evidence, etc. In my case, we have determined that instead of having Petitioner present their entire case and then have Respondent present theirs, we will address the court issue by issue. Since you choose the arbitrator, you know the background, education and tendencies of your arbitrator.
- Informality
The rules of arbitration are typically much more relaxed than the rules within a courtroom. An arbitrator does not wear a robe or sit on a raised bench within a courtroom. Typically, arbitrations take place in a conference room surrounding a large table. The same strict procedural rules that dictate who may talk and when is a non-issue during arbitration. The laws are the same and the arbitrators job is to apply the law to your facts. You still testify and present exhibits, but both parties and attorneys can speak directly to the arbitrator. If one party forgot to say something during their direct examination, they can likely supplement their testimony at any time.
Disadvantages of Arbitration
- Cost
Judges do not cost extra money. An arbitrator will add thousands of dollars to the cost of getting divorced. Maybe. The reason that we moved a case out of family court to arbitration was because in this particular case the issues were rather complicated. The judge wasn’t making the rulings that needed to be made in order to wrap up the case. Even though we are now paying for private arbitration will think we will actually save money in the long run by reaching a resolution faster. This is definitely something to be considered and discussed with your attorney.
- It’s Binding
If you agree to binding arbitration, the decision of the arbitrator is binding. You agree in advance not to appeal the decision. There are very few exceptions to this rule. That means if you get a decision that you don’t like or that is wrong, you cannot ask the court of appeals to reverse the decision.
Before deciding if arbitration is right for you, talk with your attorney about your case, your judge and your objectives. It could be that using a arbitrator may be the fastest and most cost effective was to dispose of your legal issues. For many couples, it is certainly worth exploring. For more questions on your divorce or family law matter, call us at 480-649-2905.
