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In some hotly contested divorce cases, trial is not the only option. Arbitration may be the best possible solution. An arbitration must be voluntary, and cannot be ordered by a court. It is binding. The advantages to arbitration include the following:
- You can pick your own arbitrator. If both parties have confidence in a skilled attorney or a retired judge, and the attorneys do not have a lot of confidence in the trial judge, then arbitration is an excellent option.
- Arbitration can be more cost effective.
- It can be much more informal than a trial, and you can relax the rules of evidence with regard to exhibits, hearsay, and testimony.
- It is done in a much more friendly environment at a law office, that is less frightening than the formal environment of a courtroom.
- Even with the cost of arbitration, it is still less expensive than a trial because you can streamline the procedure.
When you to go court on a trial date, even though court should begin at 8:30 a.m. and end at 4:30 p.m., the actual time in trial in an eight hour day may be two or three hours. This is due to the many breaks in the schedule, and the heavy docket that each judge has. There is also a one and a half hour lunch break. Emergencies come up during the crowded court day, which will stop the trial. In arbitration, you can set your time knowing that when the block of time is set aside, once you start you will go as long as agreed to by the parties. If you are arbitrating for seven or eight hours, you will actually get close to that time in actual arbitration without the constant interruptions that happen in a courtroom.
There are disadvantages. It is important that everyone understands both the positives and negatives. Some of the negatives include the following:
- You are waiving your right to a trial in a formal environment.
- If someone wants his or her day in court, and is adamant, arbitration could be a mistake.
- When there is a long history of domestic violence, arbitration is most likely not the answer.
- The arbitrator has more power than a judge. For example, a recent Michigan ruling stated that an arbitrator could make non-modifiable alimony where a judge in a trial cannot do that.
- The arbitrator has immunity, just as a judge does.
- It is much more difficult to appeal an arbitration award than it is a trial before a judge. The Court of Appeals in this state almost always upholds an arbitration award unless there is an abuse of discretion. The case law will uphold an arbitration award in situations where a trial judge might be reversed.
- Arbitration is based upon an actual agreement where in each case a set of rules is drafted, setting forth exactly what portions of the case will be covered in arbitration. The agreement must specify exactly what the arbitrator’s role is to be, and what issues are to be covered. The arbitration is tailor made to the specific case and facts at hand. Under the laws in Michigan, there does not have to be a court reporter present, or a recording device, if it is only property that is being arbitrated. It is advisable to always have a court reporter or recording device for any arbitration hearing, just in case there are some mistakes. If there are issues involving child custody, or parenting time, then there must be a court reporter or recording of the arbitration. This is another tool for anyone contemplating a divorce, especially where there are substantial assets and the parties are concerned that the judge is someone who does not inspire confidence.
Arbitration is an area to be explored in detail with your attorney. At Family Law of Michigan, we have a lot of experience in this area, and are prepared to advise and represent you step by step through the process of arbitration. We will advise you as to the advantages and disadvantages and details to see whether or not your case is one that should be arbitrated, rather than going through the normal trial process.
Michigan divorce article provided by Oakland County, Michigan family law Henry Gornbein. |
