Family Law

Divorce Arbitration: What Does It Mean?

By Kristina Otterstrom, Attorney
Deciding whether to arbitrate your case.

What Is Arbitration?

Arbitration is a less formal version of a divorce trial. You and your spouse must agree to arbitrate your divorce case and jointly choose an arbitrator—who is similar to a judge—to hear evidence and issue a final decision on your case. As with a divorce trial, you will need to present evidence to the arbitrator, who can exclude certain documents or testimony. You may not have to testify at an arbitration, but an arbitrator may ask you or your attorney questions about your case. An arbitrator’s decision is final, just like a judge’s. However, there are a few differences between a traditional trial and arbitration.

Since you and your spouse must agree on a specific arbitrator to hear your case, you can search for one who is skilled at handling the specific issues in your divorce. Once selected, arbitrators are usually able to move cases along and schedule arbitration sessions more quickly than judges who may be overwhelmed with divorce cases pending in the public courthouse. If you’re concerned about completing your divorce quickly, arbitration might be right for you.

What Is the Difference Between Mediation and Arbitration?

Mediation is another alternative to trial, but there are some major differences between arbitration and mediation. Unlike arbitration, mediation is non-binding. This means if you don’t reach a settlement at a mediation session, nothing said during that session can be used against you later in your case. A mediator is a neutral third-party, while an arbitrator is hired to take sides. Like a judge, an arbitrator will weigh evidence and make a binding decision on your case.

Mediation may be more appropriate than arbitration for couples who have a good working relationship, who are close to settling, or who have just started their divorce case. If you and your spouse can’t reach an agreement during mediation, you can go back to litigating your case. By contrast, once you submit to arbitration, you are bound by the results. Couples should be prepared to present all relevant evidence at an arbitration session. If you feel ready to settle your divorce, but don’t have all the evidence gathered to prove your case, you may want to wait to arbitrate.

How Should I Prepare for Arbitration?

You should treat arbitration as seriously as you would a trial. You should complete all of your divorce discovery before scheduling your arbitration hearing, so that you can present all necessary evidence to your arbitrator. Some arbitrators will ask for an outline of your case and the evidence that supports your claims.

An arbitration may be held at your attorney’s office or the arbitrator’s office. Your attorney will attend the arbitration and present your case to the arbitrator. Depending on the complexity of your case, your arbitration session may last anywhere from a few hours to a few days. Unlike a traditional trial, you will have to the arbitrator a fee. Although it can be expensive, arbitration is typically cheaper than the cost of a full-blown divorce trial, as you avoid court costs, attorneys' fees, and the expense of hiring experts in your case.

Questions for Your Attorney

  • I would like to resolve my divorce without a trial, but my spouse refuses to attend arbitration. What can I do?
  • I’m unhappy with my arbitrator’s decision. Do I have any recourse, like appealing or taking my case to trial?
  • How do I find an arbitrator who is qualified to handle my case?
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