Arbitration in Divorce Proceedings
Once divorce proceedings are initiated, the court process and reaching an agreement between spouses can take months, if not years. Family law courts in particular are consistently overcrowded due to the numerous issues and hearings that must be dealt with in these areas of law. In an effort to unclog the court system, alternative dispute resolution measures have been allowed in many states to settle divorce proceedings.
Traditionally, arbitration has been most widely used in employment law cases involving major corporations and contesting employees, as well as medical malpractice lawsuits, and court-annexed programs. Recently, alternative dispute resolution was introduced in family law to address issues in both child custody disputes as well as divorce disputes. Arbitration is one type of alternative dispute resolution that may be used in place of court divorce proceedings.
Arbitration is a process by which the spouses agree to have a neutral third party, known as an arbitrator, hear their case and make a decision regarding their divorce that is legally binding in a court of law. The rules for every situation can differ slightly; while most couples generally will only have one arbitrator present to decide the outcome, if it cannot be agreed upon, a panel of three arbitrators may be chosen to hear both sides and make a decision.
Why Use it in Divorce Proceedings?
There are a number of benefits in choosing arbitration as a means to settle your divorce.
- Privacy: The arbitrator in divorce proceedings hears both sides of the case, similar to how a judge would, but conducts the proceeding in a private setting.
- On Your Time: Unlike a court proceeding which gets scheduled without your choosing, arbitration proceedings are scheduled by the couple, around their time frame, and have more flexibility as to how soon the spouses seek to have the proceeding conducted. Sometimes your court proceeding can be located far from where you live, however, arbitration can be scheduled in a number of locations.
- Cost Savings: Couples can save a substantial amount in attorney’s fees by choosing arbitration because it tends to take place more quickly and efficiently, cutting down the time required for an attorney to be present. Additionally, following the rules of evidence is not mandatory in arbitration, thus the spouses will not have to pay an attorney to file papers using the formal rules of discovery.
- Choosing Decisionmaker: The spouses will get the chance to agree to who the arbitrator will be. While the arbitrator cannot just be any licensed attorney, they must be a certified arbitrator, preferably one with family law experience. Many couples like to choose someone who is experienced with their specific areas of contest.
- Finality: Once the arbitrator renders his or her decision, that decision will be entered into court and will be legally binding on both parties going forward.
Arbitration may not be right for every situation, and some couples still seek to use the traditional legal system to determine the terms of their decree. Although the flexibility that accompanies arbitration is desirable to most, some want the terms of their divorce made into public record. Additionally, when the arbitrator renders a decision, it is final and legally binding, meaning absent exigent circumstances, the parties may not appeal the decision. This finality makes some spouses suspicious of the process. If one party then decides they do not want to arbitrate, then arbitration is no longer available because it must be agreed to by both parties. The couple must then go back to traditional litigation, where compliance can be court ordered if one spouse is not agreeing or is not showing up to hearings.
Are Other Types of ADR Available?
There are other types of alternative dispute resolution available to the parties if they find that arbitration is not desirable for their situation. Mediation is another form of alternative dispute resolution which has less final and serious conclusions. In mediation, a neutral third party, known as a mediator here, hears both sides of the case, and then makes recommendations to the parties and the attorneys based on what each side presented as important. These final recommendations are not legally binding, but are generally worked into the final divorce agreement between the parties. Legally, mediators cannot give legal advice, just recommendations for the spouses’ current situation.
Many couples report that mediation provides a less hostile environment in which they can openly discuss their issues and come to a meaningful conclusion on their own. Mediation is most commonly used by those couples who have a solid foundation to build from, and are seeking to keep a respectable relationship present in order to best serve the interests and concerns of their children. Lastly, negotiation is another alternative dispute resolution method couples can use which will cut down the costs associated with litigation, and can settle outside of a traditional court proceeding.
Considering Arbitration for Your Divorce Proceeding?
Divorce proceedings often become stressful and are laid out for the public in official court documents; however, alternative dispute resolution provides an alternative avenue for coming to terms with your spouse. If you or someone you know is considering alternative dispute resolution for their divorce, please do not hesitate to call a dedicated Charlotte NC family law attorney at The Offices of Remington & Dixon today. We will advocate for you.