Mediation & Arbitration - Arbitration

ARBITRATION

Arbitration involves the use of a third-party neutral to decide a controversy instead of a trial court judge. The arbitrator may be selected by the parties or appointed by the court. Disputing parties may want to avoid using the courts in order to save time or expense. They may also want a decision-maker who has particular expertise or knowledge, which some judges may not have, or because they want to keep certain information out of the public domain, as most court proceedings are public in nature. For example, a couple may want their case decided by someone in a particular faith or by a psychologist or medical professional who has knowledge of a particular issue. A divorce involving the division of an asset involving certain trade secrets might also benefit from arbitration. Arbitration in divorce cases is unusual, but it is an option for couples with specific concerns.

Before selecting arbitration, however, couples should be cautious. In fact, an arbitrator arguably has more authority than a judge. This is because an arbitrator’s ruling can be overturned only for much more limited reasons than a judge’s ruling can be overturned. Generally, an arbitrator’s ruling can be overturned only if one side can show that the arbitrator’s decision was unfairly influenced by one of the parties. What is important to note is that an arbitrator’s ruling generally cannot be overruled merely because the arbitrator misunderstood the facts or did not appropriately apply the law. This means that the parties must be very careful in choosing an arbitrator. It is important that the arbitrator has a good knowledge of divorce law and is competent enough to understand the facts.

One reason some people prefer arbitration over court is that the process may be simplified. Rules of discovery and evidence may be relaxed and time lines may be structured to meet the parties’ needs rather than just the court’s needs. Creative parties who have very specific ideas about how a divorce should be handled can structure the arbitration to meet their very specific needs. Such circumstances are rare, but the options are available to parties who want particular control over their divorce process.

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