Arbitration and mediation are often used interchangeably, but they have major differences. They share in common that they are both a form of alternative dispute resolution (ADR). During arbitration, parties can decide things like on child custody, spousal maintenance, and property division. The goals are very similar to filing for divorce in court. However, the process is very different. The arbitration process is more formal than mediation or collaborative law efforts.
Each party involved in arbitration can have legal counsel present. An unbiased party – the arbitrator – listens to both sides, much like a judge, and makes decisions on the issues brought forth. Arbitration is done in private, outside of the courtroom. It is more formal than mediation, but less formal than court. A San Antonio divorce attorney can help ensure your rights are protected.
How does the arbitration process work?
Arbitration is similar to traditional divorce proceedings minus a few elements. Both parties will prepare a case with the help of their attorney. The parties or their legal counsel will present evidence and lay out arguments. While you are not required to have an attorney present, it is in your best interests to have one. The arbitrator is typically a former judge or attorney who now specializes in divorce arbitration. They are familiar with all aspects of divorce and have the authority to give a final ruling on specific areas of concern.
The arbitrator will give a ruling on each issue in dispute. The two parties will have the opportunity to agree or disagree with the findings. If one party is unhappy, they can file an appeal, which will take all parties to court. The judge will review the appeal and evidence that the arbitrator was incorrect or improper in their decision, and then maintain or dismiss the order. Most cases result in the judge maintaining the arbitration agreement.
Why choose arbitration over traditional divorce?
There are several reasons why a divorcing couple may find arbitration more beneficial than traditional divorce proceedings. Key benefits of arbitration include:
- Time: Arbitration begins right away; there is no waiting period. Both parties can schedule their arbitration sessions around their schedule. This scheduling option could include nights and weekends.
- Flexibility: Not all marital issues need to be addressed through arbitration. All parties involved can establish ground rules, unlike formal divorce proceedings. The couple will choose which topics they want to address.
- Cost: Arbitration is cost-effective compared to other ADR and divorce proceedings. There are fewer costs associated with discovery and scheduling.
- Privacy: Court cases become public records. Arbitration records are sealed, and sessions take place in private locations. When a couple wants to keep things off the record, arbitration is the way to go.
- Speed: When a couple does not want to extend the divorce process longer than it needs to be, arbitration is a good option.
How does mediation differ from arbitration?
Mediation is slightly different from arbitration. A mediator will work with each spouse to reach a mutually beneficial agreement and will not side with one party over the other. Both parties have control over the result, rather than an arbitrator making a binding decision. We advise all clients to have a San Antonio divorce attorney for mediation and other legal proceedings regarding separation or family law concerns.
Is divorce arbitration right for me?
Parties who mutually agree that the marriage is no longer viable can often benefit from divorce arbitration. The two spouses agree the marriage is over and that a lengthy legal battle is unnecessary. While they agree on some issues, others are contentious, and neither party is willing to budge. When a couple agrees to arbitration, they also decide to adhere to the arbitrator’s decision. Each party can have legal counsel present to ensure their rights are protected. An arbitrator looks at each issue and comes to an unbiased decision on what is best. The process of arbitration is voluntary, but the outcome is binding.
A couple can decide when to go to arbitration depending on their schedule, and determine the terms of that arbitration along with their attorneys. Another benefit is that arbitration is entirely confidential, unlike public court proceedings. When confidentiality is a significant concern, arbitration can be a good way to go. If this sounds like something that you and your spouse would benefit from, you should discuss this option with your San Antonio divorce attorney.
Is an arbitration agreement legally binding?
If both parties enter a written arbitration agreement, it is legally binding. The contract is enforceable by law. However, it must be agreed upon before arbitration that the divorce agreement is a legally binding document. Keep in mind that the court will have the final say on your arbitration agreement, so it’s not complete until a judge gives approval. Once the arbitrator reaches a decision, neither party can argue against it. The only way to appeal is through the court system.
Arbitration and prenuptial agreements
When you establish a prenuptial or postnuptial agreement, you can also add an arbitration provision. Arbitration is a cost-effective way to resolve divorce disputes and is made easier when a prenuptial agreement is in place to help guide negotiations. Our attorneys can also help in cases where a spouse wants to vacate arbitration or other unique circumstances with pre- or post-nuptial agreements.
It is not always necessary to go to court to handle your divorce disputes. Arbitration can help settle your issues out of court on your schedule with privacy.
The attorneys at Grable Grimshaw PLLC understand the arbitration process and are here to guide you through it with strategy and confidence. Call our office at 210-761-5687, or submit our contact form to schedule a consultation.