Binding Arbitration Over Court

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Binding Arbitration

By Margaret Brost, Esq.

If you have been told that your Motion, Settlement Conference, or Trial has been cancelled and that the court is only going to hear “emergency” issues, you might feel as if you have no options.  Many of you might already have waited weeks, months, or even more than a year.  The prospect of many more months may seem like an eternity.  Fortunately, there is an option, if all offers and even mediation have failed.  Most of us attorneys know that sometimes what is needed is a neutral decision maker, this is where binding arbitration can help. 

Several years ago, I began to use arbitration in some special situations.  In one, both clients had language challenges along with complex real and personal property issues.  The opposing party was self-representing and my client was going to have to bear the largest part of the cost of preparing for the trial, the exhibits, and the final documents.  To solve all those challenges, we agreed to binding arbitration and selected a very experienced attorney, who had served as an arbitrator in other cases.  We hired a good translator and each of us submitted a “pre-hearing” letter that described each of our version of the issues and concerns, along with all the exhibits we wanted considered.  That was not substantially different from what we would have needed to do if we were preparing for a courtroom trial. 

We then spent two full days in the arbitrator’s comfortable conference room.  There was no need for a court reporter and the proceedings were confidential.  When it was over, the arbitrator issued a decision in writing.  Then, I (because I was the only attorney) drafted a set of final documents consistent with that decision.  The arbitrator had already scheduled another session about two weeks later so that we could iron out any issues with the proposed final documents.  It only took about an hour to resolve a few small issues and then we all signed the documents.  The next day, I took them to the courthouse for a judge to sign them.  We were done!

Here are some benefits of Binding Arbitration:

  • The parties select the Arbitrator, who will decide all (or specifically identified) issues.
  • The Arbitrator selected may have desirable expertise in a specific area (unlike a judge who may only have general knowledge and may require assistance in fully understanding the law at issue).
  • The Arbitrator can decide any issue you agree to have heard, including parenting plans and child support.
  • The parties and their attorneys can pick the date, time, and location for their hearing rather than being at the will or whim of the court.
  • The parties enjoy privacy, confidentiality, and a much less formal setting.
  • The parties avoid, at least some of, the expense as well as the uncertainty about scheduling and the emotional impact of being in a formal (and public) setting.  

However, there are some considerations:

  • Finding an appropriate Arbitrator that both parties can agree to can take some time and effort.
  • Although you can agree to “non-binding” Arbitration, there is little benefit in doing so.  In the usual circumstances, the agreement to arbitrate specifies that the decision is “binding”.  Thus, if you end up with an outcome you do not like, you cannot appeal.
  • If your spouse does not obey the arbitrator’s decision, you may still have to go to court. However, the court will likely enforce the decision. 

As always, if you have any questions regarding a family law matter, please feel free to reach out to us.  Our experienced family law attorneys have the knowledge and expertise to help you navigate through the uncertainty of the Covid-19 virus.  Virtual consultations are available.  Stay safe.