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Arbitration GEM Family Law

Arbitration in Family Law Cases: starting the process

If you need a path to resolution in your family law case but are trying to avoid appearing in front of a judge who your case is randomly assigned to, you may have considered arbitration. But what is arbitration and how do you get started?

Arbitration is a dispute resolution process where parties agree to hire a private, neutral professional to make decisions about disputes instead of a judge. When most people think of arbitration, they usually think of business disputes; however, arbitration can be an incredibly useful tool in resolving your family law, divorce, and custody cases.

Often, parties agree to arbitrate because they can get a decision in weeks instead of months. In the normal litigation process, if you and your spouse cannot reach an agreement on any aspect of your divorce, the judge or magistrate will hold a hearing, make findings of fact, and enter orders that (hopefully) resolve all your disputes. Because of the high number of cases assigned to each judge, the length of time between filing for divorce and your final hearing ranges anywhere from 6 months to over a year. You are also usually limited in the time you receive for a hearing – often no more than 3 hours for each side to present their entire case. While that may sound substantial, when you have parenting matters to resolve, in addition to financial disputes, 3 hours feels more like 3 minutes.

The first step in the arbitration process is agreeing to submit to arbitration with the other party. Arbitration is by agreement only, as judges cannot force parties into arbitration (absent an enforceable agreement).

Along with the agreement to arbitrate, you need to define the issues the arbitrator will be resolving. Are they going to resolve everything in your case, or a succinct issue like who gets to keep the furniture in the house? Keep in mind that agreements to arbitrate are interpreted broadly, which means that if you don’t define or limit the issues arbitration will address, it will be assumed that you intended to arbitrate all of your disputes.

Once you have agreed to arbitrate and defined the scope of arbitration, you must select an arbitrator. Most arbitrators in family law are retired judges or respected family law attorneys, but there are no licensing or experience requirements to be an arbitrator. Arbitrators are selected based on the complexity of the issues involved, availability, and cost.

Unlike state-paid judges and magistrates, parties pay arbitrators an hourly rate for their professional services. You pay for both the time in the arbitration hearing as well as the time that it takes the arbitrator to prepare for the hearing, deliberating, and drafting written awards. If you are not able to confirm an arbitrator’s availability to take the case when you agree to arbitrate, select a backup/alternative arbitrator to save time down the road.

Once you agree to arbitration, the issues to be arbitrated, and the arbitrator, you need to put those terms in a signed, written agreement. If you are agreeing to any other dispute resolution processes, you need to put that in your agreement as well. By way of example, are you participating in mediation/arbitration where the arbitrator will first try to informally resolve your dispute with a mediation session before switching to arbitration, or will they dive right in to arbitration?
Once you have a signed agreement to arbitrate, it is time to start the process by reaching out to the arbitrator, signing the arbitrator’s fee agreement, and paying the required retainer. If a party suddenly refuses to arbitrate, you can file for and obtain a court order compelling their participation in arbitration.

Authored by: James Cordes, Of Counsel Attorney, Mediator, and Arbitrator