The American legal system is not always a great place to spend your time, and for many divorcing couples arbitration can be a very tempting alternative. This article provides some basics on the process and how it compares to alternative strategies like divorce litigation and mediation.
Arbitration allows more flexible litigation
Arbitration is a dispute resolution method that in many ways mimics a courtroom but without some of the rough edges that come with litigating in front of a judge. Before an arbitration, a couple will typically each hire their own attorney that will advise them on their own rights and then represent them in the arbitration. Then, the couple and their attorneys will work together to select an arbitrator, preferably one with experience in family law. The couple will typically split the cost of the arbitrator. Note that under normal circumstances nobody can be forced into a divorce arbitration, while one spouse certainly can draw the other spouse into court for a divorce.
The arbitration will often begin, much like a court case, with an exchange of information and the parties staking out their positions. Then, if a settlement has not been negotiated, the parties will appear before an arbitrator in a trial-like setting. The arbitrator will hear testimony and review evidence, but many of the formal courtroom rules are relaxed and that can drastically reduce the time and cost spent in the effort. After a hearing, an arbitrator will render a decision on any disputed issues. This is typically called an “award” and it is usually not appealable.
Arbitrators can be far more flexible than judges. For example, and arbitrator will often be available to meet at a time and location that works for both parties. A judge, on the other hand, typically has an inflexible schedule and it can take months or sometimes more than a year to get a contested divorce scheduled for court time. The arbitrator lacks the power of the court system, however, so the arbitrator’s decision will have to be filed with a court to get a divorce decree and the court system will be needed to enforce compliance with the arbitrator’s decision if one spouse refuses.
Arbitration should not be confused with mediation
In a mediation, a neutral third party will help a divorcing couple come to an agreement on the terms of their divorce. Unlike an arbitrator, a mediator will not step in and make decisions if there is a deadlock. A mediator can only suggest agreements for the parties to choose for themselves. A mediation also lacks the adversarial process that is involved in a courtroom or arbitration. That means that an arbitrator will make his or her decision after hearing self-interested arguments from each side, but in a mediation there is no third party looking out for the interest of each specific spouse. There is also usually nothing to prevent the parties from walking away from a mediated settlement, while an arbitration is usually binding on both spouses.