While the divorce mediation success rate is very high, that doesn’t mean it’s the right choice for every situation. A good divorce mediator is there to facilitate open communication, not make binding decisions, and some couples need a method of dispute resolution with a little more structure. However, that doesn’t mean they have to battle it out in court instead.
That’s where the arbitration process comes in. If mediation exists on one end of the spectrum and in-court litigation is on the other end, then arbitration is somewhere in the middle. The arbitration process isn’t required to follow every single procedural rule like traditional family court does, so it’s significantly more flexible than litigation. However, unlike a mediator, an arbitrator has the authority to make rulings after hearing all the evidence and arguments from both sides. In a sense, you can think of an arbitrator as a private judge, capable of making decisions but not bound by the strict process of family law. The result is a process that’s as structured and flexible as you need it to be, capable of handling the most stubborn and adversarial divorce situations without the painful experience of a court case.
How Arbitration Works
The first step in the arbitration process is to find an arbitrator. That might sound obvious, but it’s an important step and should be taken seriously. Finding an arbitrator that both parties can agree on is a requirement to start the proceedings and that can sometimes be a little tricky. It’s also important to find someone with the proper expertise and knowledge base for the case. For example, a divorcing couple that ran a business together should find an arbitrator with experience handling business assets, a couple with children should work with someone who has expertise in custody matters, and so on. The freedom to “shop around” and find an arbitrator that’s especially well-suited for your case is one of the biggest advantages this process has over litigation since a judge may or may not have the experience you need.
Once both parties and their attorneys have agreed on an arbitrator, the next step is to work out the rules for the arbitration. Some couples feel more comfortable with a process that more closely mimics litigation, with stricter rules and evidence standards, while others prefer a more free-flowing exchange of information. The choices are entirely up to the parties involved, allowing for a process that is tailor-made for your situation. Some other decisions that will have to be made before arbitration starts include whether or not to call witnesses, rules for financial disclosures, and what issues covered by the arbitrator’s decision will be “binding” or “non-binding.” In California, arbitration awards concerning child custody are generally non-binding, which means that if a party is not supportive of the decision, that party can file a motion with the local court to get different orders. Binding awards are not generally subject to review by the superior court in the same way. Because the protection of children is so central to the family’s court’s purpose, the superior court will retain the ability to review and modify child custody arbitration awards.
When the rules have been settled, the arbitration process can begin in earnest. How the process looks and plays out can vary wildly depending on what the couple prefers. Hearings can be very formal, with each party presenting evidence and arguing their case in turn, or they can be more relaxed and comfortable, like a back-and-forth conversation with the arbitrator. Some couples prefer not to meet in person at all, instead handling the process over Zoom or through written statements. Not to keep repeating ourselves, but it’s entirely up to you what your arbitration looks like. As long as you’re approaching the proceedings in good faith, there are really no wrong answers. The goal of arbitration is to create an experience that’s comfortable for everyone involved, whatever that might be.
Once the process has been completed, the arbitrator will take a look at all the evidence and testimony and make a decision and issue the Arbitration Award – basically the arbitration equivalent to a family court Judgment. There is a common misconception, even among lawyers, that an Arbitration Award can’t be appealed. That’s not entirely true, as it will depend on decisions made before the process begins. It’s up to you whether you want to retain any rights to appeal the award, and if you do, that will need to be included in the Arbitration Agreement.
Why Choose Arbitration?
We’ve covered how much more comfortable and stress-free arbitration can be when compared to traditional litigation, but the advantages don’t stop there. The flexibility of the arbitration process can also make it significantly faster and less expensive than a court case. When it comes to litigation, every case has to run on the exact same track. Unfortunately, as anyone who’s ever had to appear in court knows, that track is full of roadblocks, red tape, and piles upon piles of paperwork. Arbitration, on the other hand, lets you pick and choose which benchmarks and procedures are going to be most relevant to your situation. The result is a process that’s much more streamlined and usually less expensive as well.
Here’s an example of how easily arbitration can cut through the red tape that slows down litigation. Imagine a divorce case involving one spouse who owns a business. This is a pretty common situation and one that we see all the time. In order to properly divide the assets of the divorcing couple, we need to have a stack of documents establishing the valuation of the business. Those documents would be a logistical nightmare during litigation since each paper would have to be individually authenticated and entered into evidence, all so an expert can just explain what they mean in court anyway. The task of gathering all of the necessary documents through formal discovery can drag on for a very long time, delaying the case significantly. An arbitrator, on the other hand, can be given the authority to shortcut the whole affair and simply accept all documents offered by the parties, turning a multiple-month document goose chase followed by an intricate and procedurally complex authentication slog into a 15-second statement on the record.
Arbitration also affords a certain amount of privacy that you can’t get with litigation. Have you ever wondered why celebrity break-ups dominate news and gossip sites but the juicy details of the divorce proceedings are never made public? That’s because most high-profile couples use mediation or arbitration to handle their separation, not litigation. That means no open courtrooms, no paparazzi, and no public record of their testimony. Arbitrators also have some leeway when writing their official awards and can choose to keep them brief and detail-free, protecting the privacy of the parties involved. Divorce can sometimes be a messy business, even through arbitration, and it can be comforting to know that the details won’t be leaving the room.
If you’re looking for an arbitration firm in the Sacramento area, why not give us a try? Formed during the COVID-19 pandemic by Sacramento family law attorney Neil Forester, Forester Family Law is a primarily virtual firm that blends creative ADR methods with discrete advisory counseling to help clients resolve a divorce, parenting dispute, or other family law conflict – outside the courtroom confines. Neil, a self-described “recovering litigator,” spent 18 years working in family law in Sacramento before discovering a passion for mediation and arbitration, and he brings the full weight of that experience to every case. If you’re interested in scheduling a consultation with Neil, you can contact us through our website here or give us a call at (916) 234-6060.