What is arbitration? How does it work?

While it has its similarities to mediation and collaborative family law, arbitration is something entirely different. Find out more about what role an arbitrator plays in the divorce process.

By Delilah Knox Rios
September 06, 2006
CA FAQs/Mediation Issues

"What is arbitration as opposed to litigation, mediation and collaborative family law? How does it work?"

In litigation, the parties are before a court of law and equity. Due to the backlog of cases, the number of new filings, and increasing costs of litigation, a day in court, even one for a short motion or Order to Show Cause can be frustrating for the parties. Parties are required to be on time but must often sit all morning and sometimes into the afternoon until their case is called. Family law trials can also be delayed for months, and delayed again, due to unavailable courtrooms and priority of other cases, such as child custody.

Alternative dispute resolution includes options that the courts are unable to provide. Courts encourage mediation and collaborative law solutions, where the parties attempt to resolve the problems by agreement, without court intervention. Mediation is a process where one neutral mediator works to help the parties reach an agreement any time before a final decision from the court is made. Collaborative law involves two parties, their attorneys and an interdisciplinary team who agree not to litigate the case. If the parties decide to litigate, the collaborative process stops. The attorneys and team withdraw and the parties start over in court. This keeps the process in a “container” and encourages settlement without any hidden agenda.

In addition, alternative dispute resolution exists for individuals who are insistent upon having their case heard before a trier of fact and law. These parties and their attorneys can elect to proceed to arbitration. Arbitration is usually conducted under the rules and procedures of the American Arbitration Association, www.adr.org.

Arbitration is a process in which the parties and counsel agree in writing that an neutral arbitrator will hear their case and make a decision in accordance with any written contract and applicable rules of law and procedure. Under prevailing law, courts will usually not review arbitration awards. Therefore it is very important that the parties understand they are giving up their entire rights to a court trial. The arbitrator listens to evidence presented by both parties and makes an award. This is usually handled in a faster and more private manner then in open court, although each party must equally pay the arbitrator for his time.

In family law, arbitration is handled by a network of private judges. In some instances, a court can appoint a Special Master usually a certified family law specialist or retired judge, whose job would consist of reviewing information and presenting Findings back to a court who makes the final determination. In some counties where there are no court rules allowing for Special Masters, a stipulation or agreement between the parties and their attorneys are required.

Private judges, likewise, are certified family law specialists and retired judges who can be selected from a panel by joint stipulation and agreement between the parties and their attorneys. The hearings are then held on dates certain in the Private Judge’s offices, without the threat of continuances due to court congestion. The case therefore proceeds to trial much faster and has the individual attention of the judge. For private judge panels, see www.ivam.com, www.judicialgoldcard.com, www.adrservices.org.

Delilah Knox Rios, Attorney at Law has practiced law for over 23 years with an emphasis in Family Law, Divorce, Child Support, Spousal Support, Complex Community Property, Paternity, Collaborative Family Law, Mediation, Real Property, Small Business Contracts, Wills and Trusts providing these services to clients in all counties of Southern California. She is a Certified Family Law Specialist, State Bar of California and Board of Legal Specialization. 

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September 06, 2006
Categories:  FAQs

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