Divorce Arbitration – How it Works and Why it’s Right
Divorce arbitration is an effective method of dispute resolution which has been recognized by the New Jersey Supreme Court as an alternative to conventional litigation. Given the severe backlog in the New Jersey court system and the difficulty obtaining consecutive hearing dates and receiving timely decisions, more divorcing parties are turning to arbitration to resolve their disputes. As a certified divorce arbitrator, I will describe what arbitration is (and isn’t) and explain how it functions.
First, it is important to distinguish arbitration from mediation. While mediation involves the assistance of a third party “neutral” to encourage and facilitate a resolution, arbitration is akin to litigation on an expedited basis. In other words, at the conclusion of an arbitration hearing the arbitrator renders a decision just as would a judge hearing the case.
Second, the selection of an arbitrator is essential. My recommendation is to utilize a family law attorney who has been certified as a divorce arbitrator by the American Academy of Matrimonial Lawyers in the place of a judge who may have had limited or perhaps no family law experience prior to his or her appointment to the bench. The selection is also critical since the arbitrator’s decision will generally be binding.
Third, the issues that will be arbitrated must be determined. In short, the parties and their attorneys would make this determination in advance, to include arbitration of related non-family law matters. If custody is involved, New Jersey’s inherent jurisdiction over the welfare of children within its borders means that an arbitration decision in this area is subject to review by a court.
Fourth, the protocol of an arbitration hearing is important to consider. For example, should a court reporter be present to transcribe testimony and mark exhibits or will a less expensive means such as audio-recording suffice? Should the Rules of Evidence strictly govern at the hearing or be relaxed? Where will the arbitration take place? Will the arbitrator’s fee be advanced by one party or shared? Will such payment be subject to adjustment by the arbitrator? Needless to say, these and any other questions should be resolved in advance.
Finally, once arbitration commences, the case will proceed with witnesses testifying and documents submitted to the arbitrator consistent with the rules of evidence, as discussed above. At the conclusion of the hearing the arbitrator will advise the parties of a date for issuance of his or her decision, depending on the complexity of the issues involved. The goal of a divorce arbitrator is to render a decision within 30 days, if possible.
In summation, divorce arbitration is a far cry from the “courthouse” experience which is inefficient and difficult to endure. In contrast, presenting the case to a certified divorce arbitrator is more timely and thorough. It is also in the best interests of children who desire a conclusion of their parents’ divorce and a certainty of their future.