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Arbitration: Family Law’s Best Kept Secret (Part 2 of 2)

The first article of two on this subject is about what arbitration is and how it works. This article focuses on five main benefits of arbitration compared with traditional court.

Benefit #1: Quicker Than Court

The parties choose a date based on their schedules and avoid the hassle of court continuances, the judge’s schedule, the docket list and a host of factors beyond their control. Perhaps you want to take 30 minutes breaks for lunch instead of 90 minutes, or start earlier than court or stay later, which is not likely with court. Instead of a year in court, parties can schedule a session in a couple of months, based on their schedules. If the “housekeeping” administrative hearings are necessary, the arbitrator and attorneys can conference call instead of going to the courthouse and waiting for the judge to reach the case that day.

Benefit #2: Privacy 

Anyone has the right to be present in court, access the written court file and even request an audio recording of a trial. As you testify, the audience usually includes close friends for moral support. Other times, family members, including parents and adult children sit and listen. Testimony might include matters such as your sex life or other “dirty laundry” if your case involves marital fault. It will generally include testimony about (and court files with) your income and credit card debts. Arbitration usually happens in an office of one of the attorneys instead of the court room. Parties can also agree to exclude everyone except for those necessary to testify or otherwise. 

Benefit #3: Relaxed Environment

In contrast to court, with the bailiffs, the metal detector and the judge, arbitration involves an office. The proceedings are official but if someone needs a bathroom break, for example, they don’t need permission from a judge. There’s also a coffee. Although the parties can agree to record the hearing, they don’t have to record them.  In fact, they can agree to give the arbitrator their exhibits, read affidavits (signed under oath) and rule without even holding a hearing/trial. Court doesn’t usually offer an express lane for cases. 

Benefit #4: Make Your Own Rules

You can’t choose which judges you get, but you can choose the arbitrator you want. If the agreement to arbitrate is in effect, the court will appoint one if they can’t agree which arbitrator to use. High asset cases are especially well suited to the process because in our state, they can rest assured the family law arbitrator is a highly qualified and skilled decision-maker with years of experience working with complex matters. Parties can agree to use standard procedural and evidence rules used by the court, including the routine administrative events, or they can be informal and agree to certain rules they choose. They can also tailor the rules to fit their specific case.

Benefit #5: Creativity

Court is a “one size fits all” process, with judges using the same laws in every case whether the law is good, bad or otherwise. For instance, NC judge is legally required to treat a pet as any other marital property, like a couch or a truck. Parties might decide that the arbitrator should award custody of the pet based on what is best for the pet, the way judges decide in child custody cases. Or, the parties might both want the family home. In court, a judge has the authority to order the house sold and the proceeds divided. In arbitration, they can set their own boundaries, requiring the arbitrator to award the residence to one of them instead of ordering it to be sold. An arbitrator could decide one or two issues instead of the whole case. One example is obtaining a ruling on only the value of the family business. Once that issue has been ruled on, the parties can revisit the negotiations, especially when the business was the most valuable marital asset.

Read: Arbitration: Family Law’s Best Kept Secret (Part 1 of 2)


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