Arbitration & Divorce
You may have heard of arbitration and may wonder about arbitration and divorce. Arbitration is a form of alternative dispute resolution (or “ADR”) that’s designed to resolve disputes outside of court. Read on to learn more about how arbitration works — and when it can be useful — in Connecticut divorces.
Alternative Dispute Resolution
There are three main ways to divorce in Connecticut, mediation, collaborative law, and litigation. Both mediation and collaborative law are forms of ADR. ADR is short for “Alternative Dispute Resolution,” and is any method of resolving disputes outside of court.
Mediations and collaborative divorces take place outside of court. By contrast, divorce litigation is a court process. However, litigation can be either high-conflict or low-conflict. A high-conflict divorce uses the court more often and may go all the way to trial. In a low-conflict divorce, spouses are able to reach agreements outside of court. This most often occurs with the help of their attorneys and via different ADR tools, including arbitration.
Read: ADR & Divorce
What Is Arbitration in Divorce?
Mediation and collaborative divorce are both designed to help parties reach their own resolutions. By contrast, in an arbitration, the arbitrator decides — much like a judge in a hearing or trial. Arbitration occurs only if both spouses agree to it. Arbitration is a very common ADR approach in some areas of the law, but it is less common in divorce and family law.
What Issues Are Resolved in a Connecticut Family Law Arbitration?
How Does Divorce Arbitration Work?
Like the other ADR tools, arbitration seeks to resolve issues outside of court. Unlike other ADR tools, the arbitrator makes the final decision, not the parties. In that sense, an arbitration feels more like a trial, where evidence is presented and arguments are made to the decision-makers. It’s just that the decision-maker is an arbitrator, not a judge. (That said, many arbitrators are actually retired judges.)
How Long Does It Take to Get the Arbitrator’s Decision?
Unless otherwise agreed to by the parties, arbitrators must issue their written decision within thirty days of the date the arbitration concluded.
What’s the Difference Between Arbitration and Trial?
The major difference is that arbitration is an optional, non-court process to which both parties agree. In arbitration, you select both your arbitrator and the rules for the arbitration. Neither of those is the case in a trial.
As in a trial, the parties normally conduct substantial discovery prior to the arbitration and can call witnesses, including experts, at the arbitration.
Unlike with a judge, the parties pay the arbitrator. Note that the legal fees in trials tend to be very high given all of the time and work involved. Put in context, the arbitrator’s fee is rarely a major driver.
Timeline is also a major difference between arbitration and trial. Absent an agreement otherwise, arbitrators must issue their written decision within thirty days of the date the arbitration concluded. In contrast, judges have 120 days from the close of the hearing to issue their order. In addition, it’s typically faster to get arbitrations scheduled than it is trial dates.
Read: What Is a Divorce Trial?
What Are the Potential Advantages of Divorce Arbitration?
Arbitration works well for many spouses unable to reach agreements through other ADR methods. Now that custody and child support can be arbitrated, it’s likely to be considered as a trial alternative more often.
Ther main benefits are:
- Timing and Speed
First, as explained above, the parties retain more choice in arbitration than they do in litigation. Even though the arbitrator makes the final decision, they select the arbitrator and the rules.
Second, timing is another major potential benefit. Arbitration normally happens more quickly than a trial and can be coordinated around the spouses’ and attorneys’ schedules. In contrast, Courts often schedule trials unilaterally. In other words, the court checks its own calendar for availability and sets trial dates and time without consulting with either divorce attorney. Additionally, trial days may not be scheduled back-to-back. Plus, arbitrators typically issue their decisions within 30 days, whereas judges have 120 days from the close of the hearing. Finally, it generally takes longer — often significantly longer — to get trial dates from the court than it does arbitration dates from an arbitrator.
Third, arbitration is appealing to make spouses because it’s more private than trial. The public has no access to private arbitration, whereas the court is generally open to the public.
The final main benefit of arbitration is finality. In other words, there are more limits on the ability to appeal an arbitrator’s decision than there are on a judge’s ruling.