Arbitration is a process by which the contested issues of a divorce are decided by a third-party arbitrator. The arbitrator is usually not a judge and is selected either by agreement of the parties or in some cases, appointed by the court. Parties almost always have attorneys representing them, as arbitrators are expensive and it is a high-stakes method of resolving contested issues. This process is not used frequently in divorce cases, but is an option in some situations.
Why Use Arbitration in Divorce?
There are several reasons why some people elect to have their case settled by arbitration. The parties may want to use arbitration as a way of saving time and money in court fees, attorney fees, and dealing with busy court dockets. The procedure is somewhat simplified in arbitration as well. The rules of discovery and evidence can be relaxed and hearings can be scheduled at the convenience of the parties much more so than through traditional courts. The parties can also make agreements as to how certain issues are handled that would not be considered in a traditional court setting.
More often couples decide to arbitrate because they want a decision-maker who has knowledge or expertise in a specific area that a judge would not have. The most common reason is probably that the parties do not want certain information available to the general public. Divorce proceedings are public in nature. So, for instance, a couple who owns a business might have trade secrets or information, or other business information that neither party wants the general public to have access to.
There are some pitfalls to be avoided in selecting arbitration as the process by which parties resolve their issues. In some respects, an arbitrator has even more authority than a judge. This is in part because the arbitrator can be appealed for very limited reasons. Usually the only reason an arbitrator’s decision can be appealed is on the ground that the decision was unfairly influenced by the other party.
Unlike a judge’s ruling, an arbitrator cannot be appealed because he or she misunderstood the facts or even because he or she misapplied the law. For this reason, one should choose very carefully and make sure the arbitrator has a solid background in divorce law and experience in this area.