Arbitration falls under the umbrella of a concept known as Alternative Dispute Resolution (ADR). Two other popular forms of ADR available in divorce are “mediation” and “collaborative divorce.” The purpose of these methods of resolving disputes is to save the participants time, money, and stress often associated with litigating cases in court.
Although arbitration has been around for a long time, its use in divorce cases is relatively recent. In fact, you should check with a local divorce lawyer to see if it's approved in your state.
Unlike mediation and collaborative law, divorce arbitration is similar to a trial in certain respects. The role of the arbitrator is akin to that of a judge. You and your spouse will present documentation and witnesses, as you would in court. When the process concludes, the arbitrator will render a decision. But there are aspects of arbitration that differ from litigation, so it’s important that you familiarize yourself with arbitration’s upside and downside.
Arbitration gives you elements of control that are unavailable with the typical court process. You and your spouse get to choose an arbitrator you both agree on. In court, you can’t pick the judge who hears your case. Arbitration also provides a more comfortable setting (such as the arbitrator’s office), rather than the cold formality of a courthouse.
Additionally, you have a say in how the hearing is conducted. A court trial demands strict adherence to the rules of evidence; arbitration allows you to loosen those rules. This can be helpful in terms of providing documentation (for example, submitting a copy of a bank statement, rather than having to obtain the original), or presenting witnesses (perhaps someone’s written statement, rather than a personal appearance). Also, you and your spouse must agree upfront as to what issues the arbitration will address. This can prevent someone from springing a last-minute surprise, as sometimes happens in court.
Another benefit of arbitration is the speed with which you can conclude the process. You and your spouse will work with the arbitrator in setting the dates and times when you’ll meet, as well as the duration of each session. Divorce litigation, on the other hand, can often take more than a year to finish, and trials may be segmented—a few hours one day, then a few hours a week or two later, and so on.
The speed factor of arbitration can also parlay into a cost savings. Attorneys typically charge by the hour. There’s a lot of down time at the court house, usually waiting for a judge to become available. Whether arguing on your behalf in the courtroom, or sitting in the hall, the attorney’s meter is still running. Arbitration eliminates that lost time. The arbitrator is there exclusively for you, and you can get down to business immediately.
Arbitration also provides a degree of privacy that’s lacking in court litigation. Trials are open to the public, so strangers may be sitting in the courtroom as you air your dirty laundry during your hearing. The seclusion of an arbitration session eliminates this scenario. Additionally, unlike a trial, your arbitration isn’t part of the public record.
By far, the biggest downside to arbitration is its finality. Normally, state laws governing arbitration severely limit the grounds on which you can appeal an arbitrator’s decision. If you’re displeased with the ruling, you’re probably out of luck, barring fraud or some other impropriety on the arbitrator’s part. That limitation doesn’t exist in a trial, where you can usually appeal the judge's decision as a matter of course.
As indicated in the previous section, there can be a cost savings due to the efficiency of the arbitration process. But an expense exists in arbitration that you won’t incur with court litigation—you have to pay the arbitrator, while you don’t have to pay a judge. You and your spouse will likely split this cost (either as agreed to or as the arbitrator determines), but it’s still an additional expenditure. If you have a complex, time-consuming case, you and your attorney should try to estimate the amount you’ll be paying an arbitrator, to see if pursuing arbitration makes sense financially.
Note also that, depending on your state’s laws and the circumstances of your case, you might need to apply to the court for a confirmation of the arbitrator’s decision. So although your marital issues are resolved, there may still be some degree of court involvement.
When choosing an arbitrator, make sure the person you pick is thoroughly versed in divorce law. Ideally, the arbitrator will be a seasoned family law attorney, or a retired family law judge.
Consider using a court stenographer, or at least a quality audio device, to record the arbitration sessions. That way, if either you or your spouse decides to appeal the arbitrator’s decision (assuming there are grounds to appeal), there’s a recording of all the testimony and arbitrator’s rulings. In fact, New Jersey law requires a verbatim recording of arbitration proceedings that involve child custody and parenting time (visitation) issues.
Finally, arbitration is most often used when spouses are unable to reach a compromise. But if you’re not at that point, and there’s room for discussion, give some thought to utilizing mediation or collaborative divorce. These methods aim to leave your fate in your own hands, rather than those of a judge or arbitrator.
To see if divorce arbitration is right for you, consult with a knowledgeable divorce lawyer in your area.