I previously wrote about how COVID is impacting married life and divorce. I suggested that filing for an uncontested divorce using mediation being decided on the papers was the best way to go. In this post, I want to suggest another use of alternative dispute resolution (ADR) to attain a divorce: arbitration.
It’s Appealing (or not)
Most people think of business disputes or baseball salaries when they hear arbitration. However, arbitration can be used in any dispute. Arbitration is a process whereby a private judge (the arbitrator) makes binding decisions on the parties. Generally, there are very limited grounds to appeal an arbitrator’s decision (called an award). So while you gain speed and perhaps cost savings in arbitrating your divorce, you largely lose the option to appeal an award you disagree with.
The arbitration award forms the basis of the uncontested filing with the court. The court still is the body to formally dissolve the marriage or civil union. Press reports indicate many more divorcing couples (upwards of 30-40%) are using ADR to process their divorces/dissolutions.
In a marital arbitration, if there are children involved and the arbitrator makes a decision regarding the children, the court reserves the absolute right (under its parens patriae function) to review and change any arbitrator’s decision regarding parenting and child support. Thus, that aspect can always be appealed. Equitable distribution and alimony cannot.
Another benefit of arbitrating a divorce is privacy. Like mediation, what happens in the arbitration is confidential by agreement of the parties. Court proceedings are public (with limited exceptions generally involving children). So if tax filings were not done correctly, a Superior Court Judge is obligated (under the Sheridan v. Sheridan case) to report such an error to tax authorities. Those things can be more privately handled in arbitration.
Using Mediation AND Arbitration
It is possible to mediate/resolve some elements of the divorce and use an arbitrator to decide the unresolved elements. There is a big caveat here, though. If the same neutral acts in both roles, under Minkowitz v. Israeli, the parties must consent in writing to using the same person in both roles. A mediator will learn information in confidence that would likely not be admissible in a trial or arbitration. The neutral cannot unlearn what he or she learned. In the Minkowitz case, the court vacated (overturned) all the items the neutral had first mediated. The benefit in using one neutral is cost and time. The parties are not re-educating the neutral about the case issues.
If you are interested in using me as an arbitrator or mediator, please contact me to discuss further.