The Post-Divorce-Parenting Glossary

Divorced-Parenting Term

Divorce Arbitration

What is arbitration in a divorce?

Arbitration is a form of alternative dispute resolution process in family law that involves a third-party listening to both sides of a divorce-related dispute, then making a binding decision that the parties will have to abide to.  Binding arbitration allows each party to avoid going to court, and the decision is typically one that cannot be appealed.  Arbitration is similar to litigation, except that the arbitration hearing is held in private.  It also shares some similarities to mediation because of the informality, but there are significant differences between arbitration, litigation, and mediation that divorced or separated people should be understood.

What types of divorce-related disputes can be settled via arbitration?

The types of divorce dispute issues that can be settled via arbitration are the same ones that can be resolved via litigation or mediation.  The difference is simply the method.  Child custody, child support, changes to a visitation schedule (parenting time), parental relocation, spousal support, and other modifications to a divorce decree, can all be accomplished via divorce arbitration.

What is the difference between arbitration and mediation in divorce?

Divorce mediation should only be used by people who are likely to reach an acceptable agreement about a divorce-related dispute, if they can get past some of the communication barriers that are preventing them from reaching an agreement.  It should not be used by extremely high-conflict people, who are unlikely to be happy with any decision.  Because mediation does not lead to a binding agreement, it should not be used if one party is likely to "back out" of whatever decision they agreed on during mediation.  What sometimes happens in mediation is the parties will mediate, come to an agreement during the mediation, only to have the entire decision fall apart after they talk to family or their attorneys.

Divorce arbitration solves that issue because it leads to a binding decision.  Whatever the arbitrator decides is typically unable to be appealed.  The finality of the decision is an advantage in the sense that it puts disputes to rest.

What are the advantages of arbitration in settling divorce issues?

The three primary forms of dispute resolution in a divorce are 1) mediation, 2) litigation, and 3) arbitration.  Each has their own place in family law.  Arbitration has certain advantages that may make it the best option to resolve disputes for some divorced or separated people.

Arbitration expedites dispute resolution
Court litigation can be extremely slow.  Arbitration is much faster.  It simply requires that the parties and the arbitrator agree on a date.   This can be useful for timely issues, such as payment of a specific expense, to be resolved.

Arbitration is convenient
Court litigation does not consider the schedules of the parties involved, but arbitration can be scheduled when it works best for each party.

Arbitration finalizes disputes
Compared to both litigation and mediation, arbitration creates a more final resolution to a dispute.  Mediation is not binding, and litigation can be appealed.  Binding arbitration is typically final, which prevents perpetual litigation about a given divorce-related dispute.  Often, arbitration is used when the parties have reached an impasse that is unlikely be solved via divorce mediation and the parties do not wish to go to court.

Arbitration is private
While litigation in a family court will likely have several spectators watching the event, arbitration is private and typically takes place in an attorney's conference room.  This can be extremely important for some people who might have reasons for not wanting their past activities made public.  For example, if a dispute is litigated and illegal activity such as unreported income is brought to light, the judge is obligated to notifiy the IRS of that activity.  Arbitration and mediation are private and do not lead to that issue.

Arbitration is flexible and informal
The informality of the arbitration setting can help each person present their arguments without feeling like they are out-of-place in saying something.  In a court-setting, the formality can leave people feeling like they were not allowed to speak up about certain issues.  Arbitration allows each of the parties to set their rules and decide on what the arbitrator will be deciding.

What are the disadvantages of arbitration in settling divorce issues?

Compared to mediation and litigation, arbitration has some disadvantages that might be important to consider.  In divorce mediation, both parties work with the help of a mediator to arrive at an agreement together.  No binding agreement results from divorce mediation; however, if both parties arrive at the agreement together then they may be more likely to both be content with the decision.

Divorce arbitration does not lead to a mutual agreement.  It leads to a third-party making a decision for the disputing parties.  One or both people may be unhappy with the decision that the arbitrator arrived at.  This is similar to litigation, except in divorce litigation the decision can be appealed.  In arbitration, it cannot.

Divorce arbitration tends to be a beneficial dispute resolution method for divorce disputes between parties that are unlikely to effectively mediate or who do not wish to be subjected to the higher expense and time commitment that going to trial will likely involve.

Can arbitration in divorce disputes be appealed if one of the parties does not agree with the arbitrator's decision?

Typically, no.  Once each party agrees on the terms of how the arbitration process will be handled, the decision that the arbitrator arrives at is usually binding.  It generally cannot be appealed.  This differs significantly from divorce mediation and divorce litigation.  Divorce mediation doesn't arrive at a binding decision at all -- it only helps the parties work together to come to a mutual decision.  Litigation does arrive at a decision by a family court, but that decision can be appealed.

How is arbitration different than going to court?

While there are some similarities between arbitration and court litigation in divorce disputes, the primary differences between arbitration and litigation are that arbitration is:

Less formal
Arbitration does not necessarily require that the rules of evidence be followed during the arbitration process.  This lack of formality helps to speed up the dispute resolution process, and it results in the dispute being less expensive to resolve.  Parties can come to an agreement as to what rules the arbitrator will or will not follow.

An arbitrator can be more flexible than a judge, because before the arbitration begins, both sides can agree to what rules the arbitrator is to follow.

Binding (no appeal is possible)
Most court decisions can be appealed if one party is not happy with the decision.  Binding arbitration does not allow for an appeal, which has the benefit of reducing ongoing litigation but has the drawback of having a decision being unchangeable if it is not tolerable.

There are limited grounds where binding arbitration can be appealed, but not being happy with the decision isn't one of them.  The few reasons that a decision that resulted from binding arbitrating can be appealed include fraud on the part of the arbitrator, misconducton the part of the arbitrator, undisclosed conflict of interests on the part of the arbitrator, the arbitator not following the rules set in the beginning of the arbitration, or the arbitrator exceeding the scope of their powers.

While litigation in a family court is public, arbitration is not.  The divorce or child-custody case details will not be part of the public domain when a dispute is settle by an arbitrator.

Less Expensive
Compared to litigation, arbitration is less expensive because it is less formal and cannot be appealed.

Arbitration tends to be less stressful
Because of the more relaxed atmosphere and the finality of the decision, arbitration tends to be less stressful for many people than going to trial.  Going to court can lead to many starts and stops in the litigation process, which can prolong the stress.

How an arbitrator get selected in a divorce?

Typically, when divorced or separated people agree to settle a dispute via arbitration, each party will have their own attorney.  They will let court know that they do not want to litigate by signing a "consent order".  The consent order will be signed by the judge, and the parties will then begin the process of settling their dispute via arbitration.  Their attorneys will help guide them through the arbitration process.  The attorneys do not have to be present in the arbitration hearing; however, the rules are up to the parties and should be agreed on beforehand.

The arbitrator is hired by the parties to hear the case.  A divorce arbitrator might be an attorney or a former judge that is thoroughly familiar with family law.

Because the arbitrator is not a public employee, determining how the arbitrator will be paid should be resolved before the arbitration hearing begins.


Divorce arbitration video
This is a great video interview that explains what divorce arbitration is compared to litigation and mediation. While it is based on New Jersey law, it really applies to all locations in many ways. A must watch!!!

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