Arbitration

Another form of alternative dispute resolution is arbitration. Arbitration is not widely used in family law cases, but it is an option in some states.

In arbitration, the parties agree to submit their dispute to a third party (other than a judge) for a binding decision. The arbitrator often is an attorney or a retired judge who is usually able to hear the case in a more expedited manner than a court would hear the case. Arbitration may be expedited in two respects. First, the arbitrator may be able to hold a hearing in the case sooner than a trial judge, particularly if the trial judge has a calendar crowded with many cases. Second, arbitrations may take fewer days than a trial since arbitration procedures often are more informal than trials and the attorneys proceed more quickly. If the arbitration proceeds more quickly than a trial would proceed, arbitration will save time and costs. Costs of arbitration vary, but are usually similar to attorneys’ hourly rates (see chapter 15).

In many states, husbands and wives are allowed to arbitrate issues of property and alimony, although this is not an area of law in which there are many court opinions specifically approving or disapproving the practice. In most states, however, courts are not likely to approve binding arbitration of custody and child support. Courts usually view themselves as ultimately responsible for protecting a child’s welfare, and courts are reluctant to yield authority to an outside arbitrator.

In a New York case, for example, the mother and father agreed to have their marital disputes settled by a three-member rabbinical court that was serving as an arbitration panel. The rabbinical court gave joint custody to the father and mother, but the state court declined to follow the decision because it viewed joint custody as not in the best interest of the children because of the “extreme antagonism” between the parents. The state court, however, confirmed (upheld) the rabbinical court’s determination of maintenance.