Arbitration is a process where the divorcing spouses present their positions to a neutral third party who then makes a decision resolving their disagreement. It is different from litigation because the third-party neutral has no inherent decision making authority; the arbitrator’s authority is given to him or her by agreement of the parties.
Arbitration is typically an abbreviated trial. Often times the spouses’ presentations are limited in nature and much of the information may be presented through documentation, affidavits, written materials and other media instead of through live witness testimony.
The benefits of arbitration over litigation are that it is typically faster and less expensive than traditional litigation. Also, because of the presentation of facts to the decision maker is done in a more informal manner, the hard feelings and animosity that typically follow litigation may be avoided.
Arbitration can be either binding or non‑binding. The difference between binding and non‑binding arbitration is the effect of the arbitrator’s decision.
In binding arbitration the divorcing spouses agree in advance to be bound by the arbitrator’s decision and the arbitrator’s decision would act much like the decision of a judge in a traditional Family Court hearing. The arbitrator’s decision would be final on all of the issues that he or she addresses. Not all issues can be resolved by binding arbitration. When binding arbitration is appropriate, the decision of the arbitrator is usually final. There are only a small number of situations when a court can review and change an arbitrator’s decision. For binding arbitration, it is especially important to select an arbitrator who is trustworthy, knowledgeable and experienced.
Non‑binding arbitration results in a decision that spouses can either accept or reject. Non‑binding arbitration gives spouses the opportunity to present their cases, hear the other side, and obtain the opinion of an independent third-party neutral. Although non‑binding arbitration at first may not seem to have much use, it does have several benefits. These benefits include giving both spouses the ability to “have their day in court” while reducing or eliminating the risk that they will be bound by an unfavorable result. It also allows the spouses and their attorneys (if they have them) to get an independent analysis of the issues in their case and to receive an advisory opinion from a neutral third party. It can also motivate parties to reach an agreement between themselves by giving them a taste of litigation and the experience of having an uninterested party make decisions about some of the most important issues in their lives.
Arbitration can also be combined with mediation in a process called mediationarbitration. In this process the spouses begin by attempting to mediate an agreement. In the event that they cannot reach an agreement on some or all of the issues, the mediator changes roles, serves as an arbitrator and makes decisions on the issues that have not been resolved. The result of this type of process is a hybrid document addressing all of the issues between the spouses, portions of which were created by agreement and others decided by the third–party neutral. Again, the parties can agree in advance whether the decisions of the arbitrator are binding or non‑binding in nature. The benefit of this process is that the parties go into it knowing that at the conclusion of the process they will have decisions made on all of the issues between them. The hybrid nature of this process puts some pressure on the spouses to be reasonable and to work diligently towards an agreement because of the authority they have given the third-party neutral to make decisions in the event they cannot agree.