Divorce Arbitration: Frequently Asked Questions

Find out the how arbitration can avoid the expenses of going through divorce court.

What is Family Law Arbitration?

Arbitration is a dispute resolution procedure in which an agreed upon impartial person acts as a private judge, called an arbitrator. The process can be used to resolve an entire case, or to resolve specific issues in a case. Arbitration is less formal than a court proceeding, and can be considerably less costly. Most states have provisions governing the basic rules and procedures for conducting arbitration, but the parties retain control over many aspects of the process. Although it is sometimes possible to choose non-binding or advisory arbitration, parties usually agree to be bound by an arbitrator’s decision. State laws differ regarding what types of family law matters may be decided through arbitration. Although it is a widely available option in divorce cases, some states do limit its use, particularly with respect to matters involving child custody or support. In a few states, you can't use arbitration at all in a divorce case.

What are the Advantages of Arbitration?

Parties in arbitration have the option of choosing more relaxed rules about evidence and discovery (the exchange of information) than those required in a formal trial, which generally results in less need for preparation and appearances by attorneys, which can help keep costs down. In addition, choosing arbitration bypasses the congested calendars and delays so frequent in court processes.These features can significantly shorten the time required for resolution, and can result in significant savings as well. The parties have control over the choice of arbitrator, and over which issues the arbitrator will have the power to decide. Arbitrations are generally conducted in a more relaxed and less stressful setting than a courtroom. Finally, arbitration can be used to decide single issues, and removing even one difficult issue from a court process can help to put a stalled matter back on track.

What are the Disadvantages of Arbitration?

Agreeing to streamline and limit the rules of your case means that you give up the right to a formal trial. For that reason arbitration may be most suitable for people who begin the process with reliable information about assets, debts and income. A binding arbitration award is much harder to appeal than a trial court decision and will almost always be upheld. In addition, an arbitrator is a private decision maker who must be paid by the parties, although in most cases this expense will be more than offset by the savings resulting from the efficiency of the arbitration process.

How is Arbitration Different from Mediation?

Arbitration and mediation are both alternatives to the usual court processes. An arbitrator’s role is to decide the case for the parties, while a mediator’s role is to assist them in reaching their own decision. A mediator will work with the parties and help them identify and come to mutual agreement on issues. An arbitrator will hear pertinent information from both parties and will write a decision to which both parties must adhere.

How Do People Choose an Arbitrator?

The parties or the attorneys for the parties will select the arbitrator. In some cases, a judge makes the final choice from a list presented by the parties. Many family law arbitrators are attorneys or former judges. An arbitrator has a great deal of power, and it is important to make a careful and informed choice. If you have an attorney, the attorney will suggest arbitrators.

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