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Arbitration: Another Alternative to Divorce Mediation of Litigation

For parties who wish to resolve their divorce outside of Court but cannot reach a settlement on their own or with the assistance of a mediator, arbitration provides a viable alternative. The arbitrator, who is typically an attorney or a former judge, makes either a non-binding or a binding determination as to how the case should be resolved. The determination is based upon the information the parties present to the arbitrator in much the same fashion as the parties would present evidence and testimony to a Judge during trial. Parties who select arbitration have the freedom to select the arbitrator, set their own schedule, and conduct the proceedings in private as opposed to a public courtroom.

Although the arbitration process is less formal than a courtroom trial, the process is still regulated by certain procedural rules that are collectively known as the Uniform Arbitration Act. Typically, the parties each have an attorney represent them throughout the process. The first step in the process is for the attorneys to agree to an arbitrator or multiple arbitrators to serve as a panel. If the parties have a prior agreement to proceed with arbitration, the Act states that the parties must follow the method set forth in their agreement regarding how the arbitrator will be selected. If the parties do not have a prior agreement or if the method in the agreement fails, the parties may apply to the Court to appoint an arbitrator.

Once an arbitrator is selected or appointed, the Act provides the arbitrator with the discretion to conduct the arbitration in “such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding.” The arbitrator has the authority to hold conferences with the parties, issue subpoenas for witnesses and the production of records, and permit depositions and discovery. The Act states that the extent of the discovery exchange between the parties is determined by the arbitrator after taking into account the needs of the parties and the “desirability of making the proceeding fair, expeditious, and cost effective.” This provides the arbitrator with the freedom to conduct the proceedings as he/she sees fit.

After the arbitrator hears the testimony of the parties and their witnesses and reviews the submitted evidence, the arbitrator makes a determination on all outstanding issues in the case. As stated previously, arbitration can be either binding or non-binding as agreed to by the parties before it begins. The parties can also agree to submit all issues to the arbitrator or just one specific issue, e.g. alimony. The Act requires the arbitrator to make a record of the decision, to authenticate it, and to provide notice of the final decision to the parties. After the parties receive notice of the decision, their attorneys may file a summary action with the Court for an order confirming the arbitrator’s decision. The order is docketed and enforceable as if the matter had been resolved through the Court system.

The length of the arbitration process will vary depending on the circumstances of each case and the amount of discovery and witnesses that are needed, but arbitration will almost always provide a faster resolution than if the parties waited for a trial, conducted the trial and then waited for the decision to be issued by a Judge. While the less formal atmosphere and faster track is appealing, it is important to remember that arbitration also requires a certain degree of cooperation between parties in order to select an arbitrator and determine which issues to submit to arbitration. Not all cases are suitable for arbitration, and it is important to discuss the decision with your attorney before agreeing to proceed with arbitration.

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