Finance and Law

Divorce and Alternative Dispute Resolution: Overview of Arbitration


In a perfect world, a divorce would be simple. Two people would realize they are not a good match, and forgive each other for the many ways they may have hurt one another; custody, property division and other matters would easily be settled between the two of you; you make a clean break and start the next chapter of your life.

In most cases, it is often more complicated than that, but this does not mean you have to slug it out in the courts. There are alternatives, such as arbitration. Here is an overview of this form of alternative dispute resolution. No matter how you want to go about settling this matter, it is always important to get the advice of a knowledgeable attorney.


What is Arbitration?

Handling your divorce through arbitration means a neutral third party will make decisions regarding any issues brought before him, such as spousal support or division of assets. Each side is allowed to state their case, and the arbitrator decides the outcome.

You and your spouse are tasked with hiring the arbitrator; in some cases, multiple may be hired, and this is referred to as an arbitration panel. Some find a panel more desirable because it lessens the chances of what may be perceived as ‘’unfair’’ decisions made by just one person.

Do I Need a Lawyer?

Since this is not a regular court proceeding, you do not need legal representation. But, most legal experts would agree it is a good idea to retain counsel, and have your attorney present with you during the arbitration.

Is an Arbitrator Similar to a Judge?

In many ways, a arbitrator is similar to a judge. He is responsible for hearing both sides present the case, and is tasked with making a decision, or ruling. Arbitrators do not have to be actual judges, however. Though many are retired judges; many lawyers may also offer arbitration services. People can also train to become arbitrators, and usually have some sort of background that makes them knowledgeable in various areas of law.

While on the subject of who makes up the pool of arbitrators, it is important to give serious thought as to who you pick to hear your case. It is important the person or persons have extensive experience with divorce and other aspects of family law. Many people who seek alternative dispute resolution are eager to get this matter behind them, and there is nothing wrong with wanting that. But, don’t let this desire compromise your search; don’t just choose one of the first people you come across or the one who is available the soonest. They are making serious decisions that will impact you and your family.

Do Arbitrators Have to Follow Certain Rules?

Since this is not an official court proceeding, the arbitrator is not bound to follow established rules of evidence and procedure. But, most will to some degree because they are likely a former lawyer or judge, and doing so can give some structure to the proceedings.

What are the Pros and Cons of Arbitration?

Arbitration may help you resolve any disputes more quickly than if you were to go to court. Unlike a court, where you have no control over who will preside over your case, arbitration allows you to choose this neutral third party. You can vet their experience in handling your type of dispute. When it comes to the courts, you may run the risk of getting a judge with little knowledge and experience in family law, and who was assigned this case to help deal with an overloaded docket.

One of the cons of arbitration is since it is not an actual court case, the rules regarding discovery do not apply. If you and your spouse are being very open with each other about everything, and are committed to fairness, you should be fine. But, if there is a lot of animosity and distrust, arbitration may not be the best route. If your spouse is being less than forthcoming about finances, for example, there is nothing that can really be done about that.

Can You Appeal a Decision?

Whether you can appeal will depend on where you live. Each state has its own statutes regarding arbitration. Generally speaking, the circumstances under which you can lodge an appeal tend to be limited. It is important to discuss this with a lawyer.

Educating yourself about your options is paramount when making decisions such as this. You can easily read more about divorce and alternative dispute resolutions on various sites, such as those of specific attorneys or those offering advice on divorce.

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