What is Arbitration?

Arbitration is a process in which the parties agree to use a neutral person to make binding decisions to resolve disputes. In the area of family law, the parties can choose an arbitrator to make binding decisions regarding property and financial issues as well as child-related issues.

Many divorcing and separating couples want to keep their dispute out of court to the fullest extent possible. Because arbitration is more private and confidential than court, parties often feel more comfortable using the arbitration process to settle their marital disputes rather than airing them in open court.

How is Arbitration Different from Mediation?

In mediation, the parties are in total control of the outcome and fashion their own agreement. In arbitration, it is the arbitrator and not the parties who ultimately decides the outcome. While arbitration is a more formal process than mediation, both arbitration and mediation are less formal than court.

How Does Arbitration Work?

To get started, you and the other party must agree to use arbitration, and sign an Agreement to Arbitrate with the arbitrator you choose. You might already have such an agreement in a pre- or post-nuptial agreement or other settlement agreement.

Typically, there is then a hearing at which each party makes arguments for their position and presents their evidence, witnesses, experts if any, and documents to the arbitrator. After the hearing is closed and all the evidence is in, the arbitrator will issue a written decision that will make findings of fact and decisions based on those facts.

Can the Court Order the Parties to Arbitration?

The court cannot order the parties to go to arbitration without their agreement. Once the parties have a written agreement to arbitrate some or all family disputes, however, that agreement is binding and, except in unusual circumstances, the court will enforce it, requiring the parties to arbitrate prior to bringing their dispute to court.

Is the Arbitrator's Decision Final?

After the decision (called an award) has been issued by the arbitrator, either party may request an order from the court confirming the award. If a party feels the award needs clarification or was improper, s/he may ask the arbitrator or court to modify, correct, or vacate the award. In some states, either party may request the court to hold a hearing concerning an award on child-related matters.

Are Attorneys Required in Arbitration?

You do not need to retain an attorney to represent you and participate in arbitration, but attorneys are always welcome. Even if you choose not to have an attorney represent you at the arbitration hearing, it is advisable to consult with an attorney prior to the hearing for advice about your legal rights and obligations, and what documents and evidence might be necessary to adequately present your case at the hearing. Since the arbitrator cannot or will not give you legal advice, consulting with an attorney gives you an opportunity to ask questions and get information.

Why Should we Pay to Arbitrate our Divorce or Child-Related Issues When Court is Free?

Studies have found that arbitration is very often faster, simpler and less expensive than litigation. It is true that you will have to pay the arbitrator's fees and costs, but the service you get is more focused and personalized than court. In court, your hearing can be interrupted by unscheduled emergency motions or other matters. This doesn't occur during arbitration, so you would likely pay your attorney less during an arbitration hearing than during a scheduled court hearing.

© 2008, Mary Wollard, J.D., Family Solutions Center, LLC.