Arbitration is a more informal and private approach to divorce. Like mediation or collaborative divorce, divorce arbitration is generally more efficient and cost-effective than the traditional divorce process. Unlike mediation or collaborative divorce, parties do not make their own decisions on each issue. Instead, a privately hired arbitrator will determine the outcome of the case.
The Arbitration Process
Divorce arbitration follows the general outline of a divorce trial, but it is not bound by the same rules of court. Not all states permit divorce arbitration, and many that do require divorcing spouses to get approval by the family court before the process begins.
Once parties decide to arbitrate, they will agree on an arbitrator. Arbitrators are usually retired lawyers or judges, and many have expertise in specific family law matters, such as dividing businesses in divorce. Private arbitrators generally charge by the hour, and their fees vary greatly. You may find an arbitrator through your family court or your state’s arbitration associations, but your attorney will likely take the lead. It is generally unwise to pursue an arbitration without an attorney, especially if your spouse will be represented by counsel. If your spouse or you do not wish to work with a lawyer, you should consider summary divorce or mediation.
After hiring an arbitrator but before the arbitration begins, the parties will sign an arbitration agreement. The arbitration agreement will likely lay out the rules that the arbitration will follow, the issues that the arbitrator will decide, when the arbitrator must come to a decision, and whether the decision will be binding.
Once the arbitration agreement is signed, the case proceeds much like a typical trial. Both sides will give opening and closing statements, present evidence, and call and cross examine witnesses in front of the arbitrator. After each side presents their case, the arbitrator will issue their decision within the time allotted in the arbitration agreement.
Custody and Child Support
Some states will not allow custody or child support issues to be decided through arbitration, or will require a family court to approve the arbitration result.
Benefits and Risks of Arbitration
Arbitration is especially appealing to some divorcing couples because of its efficiency. Arbitration happens outside the court system, so parties are not bound by the court’s busy schedule. Instead, the arbitration process may begin in a matter of weeks. This efficiency lends itself to potential cost savings. Parties still pay for their attorneys, the arbitrator, and any experts, but the streamlined process means fewer billable hours overall. Arbitrators are also not bound by the same family court rules, meaning that arbitration rules can be more flexible, especially the rules of evidence. Finally, arbitration is private, while court records remain public.
Arbitration Is Binding
Arbitration is generally binding. This means that parties give up their right to pursue a traditional divorce trial later or appeal the decision.
Perhaps the greatest downside to arbitration is that arbitration decisions are generally binding. This means that not only will parties need to accept the arbitrator’s decision, but also they cannot then bring the case to court or appeal. Each case is different, though, and the benefits of arbitration may outweigh the risks.
Arbitration may be the best option for divorcing couples looking to adhere to a divorce trial format without the formal rules or inefficiencies of a family court. Divorce arbitrations are relatively new options. Parties should research the specific laws of their state and the arbitrators in their area before pursuing a divorce arbitration.