Although often confused with mediation, arbitration is a separate and different process. Whereas in mediation the parties agree on all the issues needed to grant a divorce or manage child issues, in arbitration the neutral makes the decisions for the parties. In essence, the arbitrator acts as a private judge to the parties. The court still needs to grant the actual divorce (or dissolution if a civil union) or child-related orders.
Benefits of Arbitration
- Quicker Than Court. In a litigation setting, the parties are at the mercy of the court’s schedule. Courts are overworked and have limited resources. Divorce trials can often be delayed for years. In arbitration, the process moves forward according to the availability of the parties, attorneys, and arbitrator.
- Subject Matter Expertise. The governor nominates licensed lawyers whom the Senate confirms as Superior Court judges. These judges come from all parts of the bar, the attorneys licensed to practice in NJ. The court often assigns new judges to the family part. But your judge may have been a criminal or contract review attorney before joining the bench. The court randomly assigns your case to a judge, so you have no idea or guarantee what expertise in family law your judge will have. You can jointly choose an arbitrator that has the expertise you need and not worry about a less-than-knowledgable judge.
- Maintaining Your Rights. Arbitration has many of the same protections that you receive in court, namely due process and a decision-maker who is impartial.
Downsides of Arbitration
- Limited Right of Appeal. If the judge in your trial makes an error in law, you can appeal to the Appellate Division to change the decision. (Note: You cannot appeal an outcome you don’t like simply because you don’t like it. You need for the judge to have made an error in law.) The New Jersey Arbitration Act defines the grounds for vacating an arbitrator’s award (the ruling the arbitrator makes). Those grounds are fairly limited (fraud, lack of notice, the arbitrator exceeded authority, etc.) and not liking the result is not a ground to vacate.
- Court Review of Parenting and Child Support. Normally, a court would not review an arbitration award. In a divorce, the court takes on the role of the parent to ensure the children are not collateral damage in the divorce. Therefore, the court reserves the right to review and even overturn the decision of the arbitrator in anything involving the children.
What about costs? Whether arbitration is more or less costly than litigation has been a topic of debate. The parties need to pay the arbitrator (usually per hour or day) whereas the court just costs the filing fees (plus any motion fees). There may be less in the way of discovery (information exchange for use at trial or the arbitration) at an arbitration. The parties can agree to lesser discovery requirements than the court rules might provide for. Attorneys usually represent both parties. Arbitration has much less time waiting around the courthouse. All of this might be slightly less costly in arbitration.
Arbitration can be a good option or alternative to the court process for many couples or parents.