All About Arbitration

Arbitration is sometimes confused with mediation, but it's really quite different. In arbitration, an individual—the arbitrator—hears your case outside the court system and makes a decision that usually cannot be appealed. As in a court of law, you and your spouse would generally be represented by a lawyer, and depending on the arbitrator, he or she might even insist that the rules of evidence in your jurisdiction be followed by the book.

The arbitration itself usually takes place in an office around a conference table. In many ways, arbitration is like going to court, but unlike court, where you can appeal, the arbitrator's word is final.

Unlike lawyers, arbitrators do not make an effort to settle the case. They certainly do not do what mediators do—identify issues and then help you resolve them together. Instead, an arbitrator is more like a judge. You come to the table (with your lawyer), ready to present your side. The issues, whatever they might be, have already been determined by you and your lawyer. You must present the arbitrator with your position on those issues and argue your case as cogently as you can.

Given the restrictions, why would anyone ever choose to go into arbitration rather than to a judge? The reasons, for some, are compelling:

• Depending on where you live, it could take as long as a year to go before a judge, whereas an arbitrator might be readily available.
• You and your spouse might both feel that neither of you will appeal, no matter what the outcome. Maybe you have no more money or you simply can't withstand another round of litigation. Because you're not going to appeal, arbitration has no downside.
• Everything is private. Unlike a trial, in an arbitration proceeding, there is no public record of who said what or which records were put into evidence.
• Arbitration might be cheaper than a trial. In some jurisdictions, trials do not take place day after day until they are finished. Rather, the judge might schedule one day for your case in January, one day in March, two days in April, and so on. You get the picture. Each time your lawyer has to refresh himself about your case, it costs you. Arbitrators, on the other hand, usually meet day after day until your case is fully heard. Your lawyer only has to prepare once.
• Your case may have been in court (without being tried) for so long that you just want it over with, so you're more than willing to go to arbitration to save time.

After you and your spouse have agreed you want to have your case arbitrated, the lawyers usually pick the arbitrator. Often, arbitrators are retired judges or lawyers with an area of expertise, such as matrimonial law, and are thus quite competent. As with mediators, their fees must be paid by you and your spouse.