Arbitration: Your Own Private Divorce Court (Kind of)


Many people facing divorce want to avoid the time-consuming, expensive process of fighting out their disputes in court. Mediation would be one choice, but there is no guarantee an agreement will be reached with every issue. However, a third alternative exists that is faster than litigation but more absolute than mediation: That option is arbitration.

Arbitration takes the third-party nature of mediation and combines it with the authoritative power of a judge — it’s pretty much like contracting a private court.

You, your spouse and your lawyers will agree on a third-party arbitrator to hire, often an experienced family law attorney or former judge, who will listen to both sides and render a binding decision.

There are several benefits to arbitration, as well as drawbacks, which should be taken into consideration when deciding what dispute resolution technique will work best for your case.

Arbitration Advantages

  • Arbitration is much faster

The time and place of your meeting with the arbitrator is scheduled by you and your spouse, so as soon as an arbitrator is selected, the divorce proceedings may begin. You are no longer a slave to the court’s schedule, so the often months that pass between hearings can be cut out almost entirely.

  • You set the rules

Instead of being subject the strict and unforgiving guidelines of courtroom procedure, the rules in arbitration are agreed upon by both sides before the process begins. This allows more flexibility to define how the procedures will be followed and cuts the amount of time that is often spent gathering and showing evidence in trial.

  • Documentation is off the record

Arbitration can keep a lot of stuff private, whereas everything admitted in trial becomes public record. Anything that comes up in testimony that people or business owners would not necessarily want disclosed, such as business valuations, customer lists or medical records, can be kept private.

  • Decisions are final

This means that there is little chance for a drawn out appeals process if one party does not like the decision that is handed down. It offers a sense of finality that doesn’t exist in litigation, and can expedite the process of accepting the ruling and moving on.

  • It is usually much cheaper

Even though you and your spouse are paying for the time of your arbitrator, it is generally much cheaper because less time is spent drawing out the litigation. Your attorney will not have to continue working on your case for months of trial preparation, the evidence process can be simplified and you can even set a limit for how long the arbitrator has to render a decision.

Arbitration disadvantages

  • Requires cooperation

There would be no reason to go to arbitration if you and your spouse could work out your differences on your own. Deciding on an arbitrator you can both agree upon, as well as the rules governing the procedures, takes a level of collaboration that is sometimes impossible to achieve.

  • Generally cannot make decisions regarding children

Most states retain the power to make any decision that involves the best interests of children. If your state permits arbitration of issues like custody, child support or parenting time, the agreement still must be approved by a trial judge.

  • Limited appeals process

Because the decisions handed down by an arbitrator are binding, your options for appealing the decision are generally limited to fraud. If you are unhappy with a decision, you are most likely stuck with it. Additionally, if you opt out of record-keeping, your chances of appealing even on the grounds of fraud are slim to none.

  • You set the rules (again)

Evidentiary rules, while sometimes tedious and time-consuming, serve multiple purposes — to keep out hearsay, to require authentic documents, to require precision, etc. These guidelines are applicable in trials, but are often waived in arbitration to create a faster and more streamlined process. This can create uncertainty regarding the validity of evidence that would not exist in trial.

  • Orders are more difficult to enforce

Most states that allow arbitration do not grant arbitrators the power of contempt, so if your spouse does not uphold their end of the bargain, you may have to return to a judge if you are inclined to request jail time, fines or other traditional contempt remedies.

Arbitration generally offers a solution to quickly finalize a divorce without a long, drawn-out courtroom battle. But at the same time, you must decide for yourself if you are ready to live with the decision that is passed down and accept a limited ability to appeal the agreement you are given.

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