When it comes to getting divorced, the two things that most people are worried about are: how long will it take and how much will it cost? If you go through a "traditional" divorce, i.e. you go through the court system, chances are that your case will take longer and cost more than you ever dreamed.
It's no secret that the court systems are overburdened with cases. Depending upon where you live, and how complicated your case is, it can take anywhere from six months to two years or more to get your case to trial. That means that for years, you and your spouse will be locked in limbo, going back and forth in court on motions, status calls, pretrial hearings etc., etc. While all of that is going on, your life is on hold and your bank account is bleeding money for attorneys, accountants, experts, and other divorce professionals. But, your divorce doesn't have to go that way. Today, you have choices.
There are many ways you can work through your divorce. You can use mediation, negotiation, collaborative law, or "cooperative" law to resolve your case. All of those are alternative dispute resolution systems that minimize your time in court. What is newer in the world of family law dispute resolution is arbitration.
Arbitration is like a "mini trial." But the arbitration hearing is usually less formal than a court trial. It usually takes place in the arbitrator's office, not in open court. Each side presents witnesses and evidence. The arbitrator presides over the hearing much as a judge would preside over a trial. The arbitrator listens to all of the evidence and rules on any objections the lawyers might have. Then, after the hearing is over, the arbitrator decides the case and enters an award. That award then gets confirmed in court, and the case is resolved.
Why choose arbitration? There are lots of reasons.
- Choice. You (or your lawyers) get to choose your arbitrator. You don't get to choose your judge. And not all judges are created equal. Some are better than others. Some are more qualified than others. With arbitration, your lawyer can choose someone who is not only experienced in the law, but who may have special experience with the issues involved in your case.
- Privacy. Arbitrations are private. Trials are not. Trials are conducted in open court, and anyone can watch them. The only people at your arbitration hearing will be you, your spouse, your lawyers, the arbitrator, and any witnesses you choose to have testify. There may or may not be a court reporter but, unless someone appeals from the arbitrator's award, no transcript of the proceedings gets filed in court. Arbitration thus gives you much more privacy than any court ever could.
- Speed of Resolution. Arbitrators are not burdened with overcrowded court dockets. They are not responsible for hundreds of cases. That means they have more time to devote to your case. That also means that you can usually get your case heard in a much shorter time than you could if you appeared before a judge.
- Cost. Arbitration can be less expensive. Yes, you will have to pay an arbitrator to hear the case and make an award. You don't have to pay for a judge. So, arbitration will cost you money. But, since arbitrations are usually less formal than trials, they also take less time than trials. Your lawyers will also have less "down time" in an arbitration; they don't have to sit and wait in court while dozens of other cases get called before them. What's more, arbitrators are free to conduct business via telephone and email in a way that judges just can't do right now. All of that means a more efficient, and less expensive process.
- Single Issue Arbitration. You can use arbitration to resolve a single issue (called "bullet arbitration") or your entire case. Sometimes, if you just had the answer to just one question, the rest of your case would be easy to resolve. In that case, you can use arbitration to get a quick decision on that one issue, then take the rest of your case back to court.
So, if arbitration is so wonderful, why isn't everyone using it? The main answer is: tradition. Even though arbitration has been used for hundreds of years to resolve other types of cases, it has not been used to resolve family law cases. And the law (and lawyers!) are nothing if not traditional. Arbitration also has a few other drawbacks you need to consider before you jump in:
- Your Attorney's Comfort Level With Arbitration. Not a lot of family lawyers use arbitration to resolve cases right now. That doesn't mean there is anything wrong with the arbitration process. But, because it is so new on the scene, you may have to convince your lawyer to try it.
- Lawyers Think Discovery Rules Won't Apply in Arbitration. Lawyers want to be sure that their clients have the right to conduct discovery and obtain all relevant information from the other side. Some lawyers think that, if they agree to go to arbitration, they give up their right to conduct discovery. However, that's really not true. When you decide to arbitrate your case, you also decide what rules will apply to your case. If you want the discovery rules to apply, you just have to say so in your arbitration agreement.
- Lack of Specific Arbitration Statutes. Only a few states have specific matrimonial law arbitration statutes. (Colorado, Connecticut, Indiana, Michigan, New Hampshire, New Mexico and North Carolina have specific statutes for family law arbitration. Kentucky, on the other hand, prohibits family law arbitration. So, if you live in Kentucky, you can't arbitrate your divorce.) If you want to arbitrate in any other state, your lawyer has to rely on general arbitration statutes that may not exactly fit family law cases. In the grand scheme of things, that can be a bit of a challenge, but its really not that big of a deal. Many states don't have statutes governing collaborative law either, and lawyers have been using collaborative law to resolve cases for over a decade now.
- The Court's Control Over Issues Related to Children. Family law courts always have the final say over matters involving custody, visitation and other child-related issues. That means that, no matter what an arbitrator rules on those issues, the court still has to approve the arbitrator's decision. Rather than being a drawback, however, that is really a good thing. It means that a court will review an arbitrator's decision on child-related issues to make sure that the arbitrator's decision is really in your children's best interest.
Just like any other alternative dispute resolution method, arbitration isn't appropriate for everyone, or for every case. It is, however, another option. It will keep you out of court, and can help you get your case resolved more quickly, more privately, and more economically.
Karen Covy is a lawyer, mediator, educator and the author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally.