This article is about one of the most interesting and effective means of resolving contested divorce cases without resorting to traditional litigation. Divorce arbitration occupies a unique position in the growing field of alternate dispute resolution. Let’s start by stating what it is not. It is not mediation where divorcing parties meet with a trained person who will hopefully assist them in achieving a settlement through a process of discussion, negotiation and compromise. Quite simply, some cases call for more than mediation can provide, especially if the parties are less than trustful of each other and a more firm, formal approach is appropriate. So what is divorce arbitration?
In divorce arbitration, the parties select an impartial third party to decide the issues in their case in the same manner as a judge. If the parties have lawyers, the selection will be guided by their advice based on the experience, reputation and integrity of the potential arbitrator, who has likely received specialized training and been certified as a divorce arbitrator by the American Academy of Matrimonial Lawyers (AAML). Each party presents their case at the arbitrator’s office, or other convenient location, in a more efficient and private manner than would occur in a courtroom. The case proceeds as it would in court with each party testifying under oath and presenting evidence, the admissibility of which may either mirror strict evidence rules or be more relaxed, so long as everyone agrees. A record of the proceedings is kept, sometimes by a live reporter and other times electronically, for future reference. Either party can call or subpoena witness to testify. Most importantly, at the conclusion of the hearing, the arbitrator issues his or her decision which, except for very limited legal reasons or if the parties agree otherwise in advance, is binding. The award is then be confirmed by the court granting the actual divorce.
Divorce arbitration can deal with all issues arising out of a marital or civil union dissolution, including custody, parenting time, alimony, child support, division of marital assets/liabilities and other issues. It is also well-suited to post-divorce settings such as parental relocation and change-in-circumstances cases. Given the significant backlog which courts are facing, the benefits of privacy and the issuance of a timely decision, divorce arbitration is here to stay.