Dale Console is a Fellow of the American Academy of Matrimonial Lawyers (AAML). She is chair of the AAML’s National Arbitration Committee and a faculty member of the AAML Arbitration Training Institute. She is president of the New Jersey Divorce Arbitrators Association, an organization of AAML trained arbitrators. Diana Shepherd, Editorial Director of Family Lawyer Magazine, interviewed her for this podcast.
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Here Are Some Ways Clients Benefit From Arbitration
Can you tell us what attracted you to arbitration – and why you became an arbitrator?
Well, I had initially done some of it over time, but it wasn’t something that was used a lot then. I actually litigated the case in our State Supreme Court on arbitration of custody issues, then got very much involved. I currently act as Chair of the American Academy of Matrimonial Lawyers’ National Arbitration Committee; I have been involved in arbitration across the country for several years, and I also teach it.
When would you advise a client to arbitrate a case rather than try it in court?
Quite frankly, the more I do this, the more I think that arbitration is a much better alternative. But you have to consider what your goals are. Arbitration involves self-determination. You get to pick your arbitrator; you can’t pick your judge. And you can pick somebody who is knowledgeable in the field and who has substantial experience. There are very good judges around the country, but there are also relatively inexperienced judges.
Arbitration is an expedited procedure. It’s usually much quicker than what goes on in a courthouse, depending on where you are. There are certainly jurisdictions and certain counties where cases move quickly, but there are other ones with a huge backlog and you can wait two or three years to get a trial. You can try your case for one or two days a month, for over an entire year, and then and wait another year for a judge to make a decision. Arbitration is much more expedited and gets it done.
It is also confidential. There can be cases where you don’t want your dirty laundry aired in the public domain. There are certain jurisdictions, mine being one of them, where if there are issues with unreported income, the judge will report you to the IRS.
And there is the issue of finality. When the arbitration is over, it’s done and you deal with what you’ve got. So, there are a lot of advantages to it. It can also be extremely cost-effective, in addition to everything else.
Can you choose to arbitrate specific issues as opposed to arbitrating all pending issues?
You can do whatever you want. Arbitration is a creature of contract and you can definitely limit the issues. It is very effective, particularly in places where arbitration doesn’t take place on a regular basis on limited-issues cases. For example, if you have one issue that’s driving the case, or a post-judgment issue that’s relatively easy to resolve, then you can get an arbitrator to decide just those issues. Arbitration is going to be much more effective and quicker than trying to go through the court system on those kind of things.
On the other hand, you can do a soup-to-nuts divorce case and arbitrate the entire thing. You get to choose what you’re doing – that’s the self-determination part of it. You get to tell the arbitrator what you want him or her to do, then you proceed on that basis.
If permitted in the jurisdiction, is it better to opt for binding arbitration as opposed to non-binding arbitration for divorce cases?
That’s an interesting question, and one which is not entirely understood. If your purpose for going to arbitration in the first place is to get an expedited procedure, finality, and cost-effectiveness, then you’re not going to want to have something that’s non-binding.
The stumbling block that most people have with arbitration is that everybody thinks all arbitration is binding and non-appealable. Lawyers and litigants are afraid to let go of that. But the reality is that it’s a creature of contract, and you can pretty much set up whatever you want. Within your contract you can provide for a private appeal panel if you want to. You can hire two arbitrators, or three arbitrators to review the case. Or you can have an arbitrator issue a preliminary award that everybody can see – to make sure that we’ve dotted our i’s and crossed our t’s, and that nothing has been left out. So, it isn’t entirely true that it’s all binding and you are absolutely and completely stuck with it. There are ways to deal with that.
Another part is you have to be careful about what issues you are discussing. If you’re talking about the financial issues like distribution of property and alimony, then most jurisdictions are going to say it’s a binding decision. But if you’re talking about issues involving children, custody, parenting time, visitation, and child support, then those are issues which are more problematic – the basic problem is that the court cannot delegate a parent’s obligations to a third party. Some jurisdictions have said that you absolutely cannot arbitrate those issues whatsoever. Others have said you can, but it’s not going to be entirely binding: there’s going to be some level of review by the court, usually based on the best interests of the child. You have to know what the law in your jurisdiction is.
Dale Console is a family law attorney and arbitrator practicing in Kingston, New Jersey, www.daleconsolelaw.com. For more information about arbitration in New Jersey, please visit the New Jersey Divorce Arbitrators Association website.
Arbitration: Insights from an Experienced Practitioner
William M. Levine is an AAML Fellow and a former chair of both the AAML Arbitration Committee and the Massachusetts Chapter Arbitration Committee. Mr. Levine is a family law arbitrator and mediator practicing in Westwood and Northampton, Massachusetts.