Most people who find themselves in family court want a resolution yesterday. That was pre-COVID. Since March, the pandemic has put its heavy foot on the brake pedal. Get prepared for shortened hearings and – sometimes – longer delays between filing and final resolution.
Emergency hearings go to the front of the line, but those hearings are narrowly defined. The vast majority of hearings have been pushed to the back of the line, sometimes for months on end. Even then, hearings are limited to a maximum of three hours. In response, more and more people are looking for ways to bypass the court process.
One way around this is to agree to private arbitration. There are numerous benefits to private arbitration and it can be effective regardless of the size of your assets. It is also not as costly as you might imagine. In addition to quickly resolving cases issues that might otherwise get bogged-down at the court house, private arbitration gives you confidentiality, scheduling flexibility, a more informal atmosphere along with lots of other benefits. Here are some things you will want to know:
A private arbitrator is someone you and your ex choose to make either some or all of the decisions in your case. This is different from mediation, where the mediator cannot make any decisions, but rather is limited to encouraging you to make a settlement.
There are lots of benefits, but here are the most common ones:
- Privacy: Private arbitration allows you to keep the details of your private life private. You may have a business, business secrets, financial issues or messy personal or potentially embarrassing details that you do not want to reveal in a public record. Unlike a court ruling, which is in the public record, you can just submit the final arbitration decisions as a final order, and leave out all the personal, sensitive, embarrassing (not all distasteful, but some things you would just rather not have public) details.
- Choice: It’s all about choice. You get to actually choose the person who will decide your issues. You can choose a person who has more time and more special expertise in legal issues that are specific to your case than a judge might have. This means you won’t waste valuable court and attorney time educating your arbitrator just to bring them up to speed on the law related to your issues.
- You are in charge of the process: You can custom tailor the arbitration process in very creative ways. For example, you can choose the directions you give to the arbitrator as to how to conduct the hearing or what legal standards to use or what evidence may or may not be considered.
- Flexible and fast scheduling: You can fast track your hearing; get as much hearing time as you need; and custom tailor the scheduling to your needs. For example, you may have health concerns or complicated issues. An arbitrator can break the hearing into bite sized pieces. There is also no need to schedule hearing days several days or even weeks or months apart, which can happen in a court proceeding.
- Early closure: Instead of waiting months for a trial date and then 60 days for the Court to rule, most arbitrators can give their decisions within 20 days or less. This allows you to achieve closure far more quickly.
- Informality: You get to have your say in an atmosphere far less intimidating than the courthouse without the sterility of court procedures. A more informal and self-determined process leaves more room for the spirit of future goodwill with your ex.
It is true that the public is not charged for a judge’s services. But, if you have an attorney, you will pay for their services, which can be very expensive. Because arbitrations are streamlined to your requirements, they typically require less attorney time. You also avoid the costs of an appeal. More to the point, you also avoid the inevitable emotional and monetary costs that delay and uncertainty create in your personal life.
For a family law case, you can choose a family law certified specialist and/or one who has training in arbitration matters. In Arizona, a certified family law specialist must pass a state-wide exam which tests their knowledge of family law. Additionally, look for the following:
- One who understands the law regarding your issues.
- One that you do not have to pay or waste precious time educating.
- One who will not just split the difference, but rather really understand the nuances of your situation.
- One who has a lot of human experience and a sense of justice.
- One you has a good reputation and that you can trust.
Yes. But first you must submit the Arbitration award to the Court for inclusion in a Court order. As long as the Arbitrator followed the arbitration agreement and the law, the Court does not have any discretion to refuse to do this.
The primary disadvantages to private arbitration are:
- You will pay for the services of your arbitrator. There is no charge for the judge’s services. But, as noted above, a more formal process can take much longer. The arbitrator’s fees may be more than offset by the speed and expediency of an arbitration.
- The arbitration award is not appealable except under very narrow circumstances. This can be an advantage or a disadvantage depending on your perspective. On the one hand, finality is a worthy goal. Appeals are expensive and seldom fruitful. On the other hand, you may think the award is very unfair and you would want to preserve your options for appeal. This is why it is important that you have trust in your arbitrator’s knowledge and ability to be fair. It is a lot easier to accept a decision under these circumstances. Another option would be to allow for a limited appeals process in the form of review by another arbitration. This adds another layer of cost, but you would pay a lot to file an appeal from a court decision as well.
- Finally, in Arizona, an arbitrator can decide parenting and child related issues if you and your partner agree to this. But, the decision is reviewable by the court, so the efficiency and finality benefits of arbitrator may not be fully realized in cases where the sole issue you are trying to resolve is child related.
If you are interested in pursuing private arbitration as an option to court, we have those services. Feel free to check out the arbitration section of our website for more information.
Message from The McCarthy Law Firm
The McCarthy Law firm is a full service family law firm that services all family law and parenting time issues. If you are going through a divorce or have questions about arbitration or divorce, we are here to assist you. Please call us at 520-623-0341 to explore your options. Turning Stress Into Solutions ™.