Divorce Mediation Blog

Guest Post: Is Your Divorce Case Going Nowhere in Court? Maybe You Should Consider Family Law Arbitration

Thursday, August 08, 2013

by Karen Covy

If you want to get divorced, you have to go to court, right? The answer is yes …. and no. Only a judge has the power to divorce you. So, yes, if you want to get divorced, at some point you (or in some jurisdictions, just your attorney) have to appear in front of the judge. But, just because you have to end up in court to finalize your divorce, that doesn’t mean you have to start in court, or stay in court the entire time you’re going through your divorce. Today, you have options.

There are many ways you can work through your divorce now. You can use mediation, negotiation, collaborative law or “cooperative” law. All of those are alternative dispute resolution systems that minimize your time in court. What is newer in the world of family law dispute resolution is arbitration.

Arbitration is like a “mini trial.” Typically, two parties to a dispute will appear before an arbitrator and conduct an informal “trial” of their case, usually in the arbitrator’s office. Each side presents witnesses and evidence. The arbitrator presides over the hearing much as a judge would preside over a trial. The arbitrator listens to all of the evidence and rules on any objections the lawyers might have. Then, after the hearing is over, the arbitrator decides the case and enters an award. That award then gets confirmed in court, and the case is resolved.

So, at this point you may be thinking, “if an arbitration is just a mini trial, why bother? Why not just stay in court.” There are lots of reasons.

  1. You (or your lawyers) get to pick the arbitrator. You don’t get to pick your judge. Just like judges, arbitrators are sworn to be fair and impartial. But, since your lawyer is choosing the arbitrator, presumably your lawyer will choose someone who is not only experienced in the law, but may have special experience with the issues that are involved in your case.
  2. Arbitrators are not burdened with overcrowded court dockets. They are not responsible for hundreds of cases. That means they have more time to devote to your case. That also means that you can usually get your case heard in a much shorter time than you could if you appeared before a judge.
  3. Your hearing is private. The only people at your hearing will be you, your spouse, your lawyers, the arbitrators, and any witnesses you choose to have testify. There may or may not be a court reporter but, unless someone appeals from the arbitrator’s award, no transcript of the proceedings gets filed in court. Arbitration thus gives you much more privacy than you could ever have in court.
  4. Arbitration can be less expensive. Yes, you will have to pay an arbitrator to hear the case and make an award. You don’t have to pay for a judge. (At least, you don’t pay judges directly. Rather, your tax dollars pay the judge’s salary.) So, arbitration will cost you money. But, since arbitrations are usually less formal than trials, it takes less time to go through an arbitration than it would to go through a trial in court. There is also less “down time” in an arbitration. Your lawyers don’t have to wait in court while dozens of other cases get called before them. When the lawyers have an appointment with the arbitrator, they are the only ones there. Finally, arbitrators are free to conduct business via telephone and email in a way that judges just can’t do right now. All of that means a more efficient, and less expensive process.
  5. You can use arbitration to resolve a single issue (called “bullet arbitration”) or your entire case. Sometimes, if you just had the answer to just one question, the rest of your case would be easy to resolve. In that case, you can use arbitration to get a quick decision on that one issue, then take the rest of your case back to court.

So, if arbitration is so wonderful, why isn’t everyone doing it? The simple reason is that, traditionally, people haven’t used arbitration to resolve family law cases. Arbitration has been used for hundreds of years to solve other types of cases. But not family cases. And law is nothing if it is not traditional.

At this point, most states (except Kentucky) allow for arbitration in family law cases. But only a few states have specific matrimonial law arbitration statutes. ( Colorado, Connecticut, Indiana, Michigan, New Hampshire, New Mexico and North Carolina have specific statutes for family law arbitration.) If you want to arbitrate in any other state, your lawyer has to rely on general arbitration statutes that may not exactly fit family law cases. That’s a bit of a challenge. And because there aren’t a lot of people doing family law arbitrations yet, many lawyers aren’t comfortable doing them. Finally, even in states that recognize family law arbitration by statute, the court usually maintains the final say over matters involving children: custody, visitation and parenting issues. So, using arbitration to resolve your divorce issues is not without challenges. But, it’s a choice.

If you are interested in arbitrating your case, ask your attorney about it. Maybe arbitration can help you, maybe it can’t. The bottom line is, it is yet one more option you have for resolving your case yourself and staying out of court.

Karen Covy is a lawyer, mediator, educator, and the author of When Hapily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. This article is re-posted with permission from Karen Covy’s blog at: http://karencovy.com/is-your-divorce-case-going-nowhere-in-court-maybe-you-should-consider-family-law-arbitration/

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