The Arbitration Alternative to Litigation
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By way of introduction, I have been an attorney for 35 years. Approximately 20 of these years have been dedicated exclusively to the practice of family and matrimonial law. My practice has included actions for divorce and all issues concomitant with the dissolution of a marriage including child custody and visitation matters, child support, spousal support, and equitable distribution. In addition, I have handled numerous post judgment proceedings including modification of support obligations, relocation issues and modification of custody/visitation orders.
I derive great satisfaction in helping people through difficult periods in their lives and I certainly tried to do this during my years practicing as a traditional matrimonial/family law litigator. What I found, however, was that no matter how good my personal intentions might have been, the litigation process was at its best costly and time consuming. At its worst, it exacerbated a very difficult situation and often left the parties emotionally and financially drained. It is my strong belief that traditional litigation, while necessary in some highly contested cases, should not be the method of choice when approaching divorce and family law matters. In fact, I developed an aversion to this type of litigation because of the damage it inflicted upon its participants – the couple divorcing, the children and yes, even the attorneys. There is no question that many of my cases still involve litigation. The paradigm for divorcing couples and those with family law problems is still arming oneself with his/her own lawyer and charging ahead with litigation. There are other ways to approach marital separation, divorce, child support, custody/visitation, etc. and that is the subject of this article.
LITIGATION, COLLABORATIVE LAW AND MEDIATION
Currently, there exist three general approaches to handling the dissolution of a marriage and family law matters: conventional litigation, collaborative law and mediation. Briefly stated, conventional litigation is what we think of when we envision each party hiring his/her own lawyer, filing an action for divorce or a Family Court proceeding, and going to court. This process is often lengthy, costly, increases the acrimony that exists between the parties and often spirals out of control, the couple becoming helpless spectators to their own legal affairs.
A “friendlier” approach is collaborative law - when the parties agree not to go to court and commit themselves to working together toward an amicable resolution. With collaborative law, each party hires his/her own lawyer and the parties agree to full financial disclosure, transparency, cooperation with the process, and most importantly, not to go to court. If there is a breakdown in the collaborative process, the parties must hire other attorneys to litigate the case.
The third approach is mediation. Both parties go to one mediator who works with the couple to arrive at settlement terms. It is incumbent upon the parties to agree to these terms and the mediator works to facilitate the process. The mediator then prepares an agreement or letter of understanding. In most cases, the parties then take this agreement to their separate attorneys for review. I am a trained mediator and it is wonderful to find parties committed to the process. However, mediation can be difficult and may fail when an imbalance of power or lack of trust exists between the couple. In such cases, mediation may be inappropriate.
When couples are not comfortable with mediation and yet would rather not incur the expense of hiring two attorneys (necessary with the collaborative approach or traditional litigation), I suggest a mix of mediation and arbitration. Arbitration works where mediation may fail because the arbitrator is more active in helping the parties decide settlement terms. In traditional mediation, the mediator does not give voice to her opinion, acting instead as a facilitator between the parties. In arbitration, however, the family law arbitrator uses her experience as a family/matrimonial lawyer and knowledge of statutory and case law to inform the parties how a court would in all likelihood decide an issue if the case had been litigated. With this information as a backdrop, the issue is decided and a potential impasse to settlement avoided. Where mediation requires party driven settlement terms, an arbitrator can decide issues for the parties.
Parties can decide to employ arbitration to their entire matter or they may wish to use a combination of mediation and arbitration. In highly contested cases that are being traditionally litigated, the parties may find some relief by applying arbitration to discrete issues such as custody or visitation, and in that way resolving those issues that can be settled. The arbitrator can work with the parties’ litigating attorneys to prepare “side agreements” either to stand on their own or to be incorporated in a final settlement agreement. As deemed necessary, the arbitrator works with forensic accountants to evaluate marital property and forensic and treating therapists to assist with custody and visitation concerns. Similarly to mediation, the parties are strongly advised to have their own attorneys review the terms of any agreement prepared by the arbitrator. Family/matrimonial arbitration is by its nature non-binding unless the terms reached are agreed to, memorialized in a written agreement, signed and duly acknowledged by the parties.
I welcome any enquiries regarding my mediation/arbitration practice.