Three experienced matrimonial arbitrators – Dale Console, William Levine, and Lynn Burleson – offer insights into the arbitration advantage.
Edited by Diana Shepherd, Editorial Director of Family Lawyer Magazine
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. Listen to her podcast, “How Clients Benefit from Arbitration,” here.
When would you advise a client to arbitrate a case rather than try it in court?
The more I do this, the more I think that arbitration is a much better alternative. You get to pick your arbitrator; you can’t pick your judge. Arbitration is an expedited procedure; there are jurisdictions with a huge backlog and you can wait two or three years just to get a trial date.
Can you choose to arbitrate specific issues as opposed to arbitrating all pending issues?
If you have one issue that’s driving the case, then you can arbitrate just that issue or you can arbitrate the entire case. Arbitration need not be rent-a-judge and replicate what goes on in a trial. It is less formal; if you have multiple issues, you can have the arbitrator hear all of the evidence on one issue and decide it. That decision may eliminate the need to deal with some other issue, which can save an enormous amount of time and money.
Is it better to opt for binding or non-binding arbitration for divorce cases?
If your purpose for going to arbitration is to get an expedited, cost-effective procedure, then you want binding arbitration. Most people think all arbitration is binding and non-appealable, but the reality is that you can pretty much set up whatever you want. For example, your contract can provide for a private arbitration appeal panel. In most jurisdictions, decisions about financial issues are binding. Issues involving children are more problematic. In some jurisdictions, you cannot arbitrate those issues. Others say you can, but it’s not entirely binding: there’s going to be review by the court, usually based on the best interests of the child.
William M. Levine is an AAML Fellow and a former chair of both the AAML Arbitration Committee and the Massachusetts Chapter Arbitration Committee. Listen to his podcast, “Arbitration: Insights from an Experienced Practitioner,” here.
What’s the relationship between mediation and arbitration?
They are both voluntary processes that empower clients to make as many decisions for themselves as they can. The mediator keeps people talking productively until they reach an agreement, whereas an arbitrator is a decisionmaker. I no longer represent clients: I am a mediator and an arbitrator, and some cases end up using both sets of skills. In Med-Arb, I work with the parties as a mediator until they reach an impasse – and then I switch hats and serve as arbitrator.
Do former judges or family lawyers make the best arbitrators?
The parties can consider anything they want – including intelligence, temperament, integrity, and experience – before selecting an arbitrator. If a family lawyer and a former judge have comparable attributes, they can be equally effective. But many judges have not seen a lot of cases involving sophisticated business issues, for example, while an experienced divorce lawyer may have been involved in hundreds of them. Lawyers may be more sensitive to the needs of parties and counsel in structuring process and procedure.
Lynn Burleson is an AAML Fellow, former chair of the AAML Arbitration Committee, and one of the drafters of the AAML Model and the North Carolina Family Law Arbitration Act. Listen to his podcast, “The Cost-Effectiveness of Arbitrating Complex Cases,” here.
Is arbitration more suitable than litigation for complex cases?
I cannot imagine a complex divorce case where a family court judge would be more qualified to hear it than an AAML certified arbitrator. For example, seasoned family law attorneys are involved in sophisticated business valuation cases with much more frequency than that the typical family court judge. Judges are often assigned to other nonfamily law courts and have limited time to devote to a single case. An experienced family law specialist who is also a trained arbitrator enhances the chances of the parties receiving a fair and well-reasoned result, consistent with state law and the terms of the arbitration agreement.
Is privacy a powerful factor attracting high-stakes cases to arbitration?
In high-profile cases where one of the parties has some notoriety, clients often prefer to keep their business dealings
and personal affairs out of the public eye. Confidentiality terms are often the first ones negotiated in arbitration agreements. Arbitration offers more options in ensuring the privacy of personal and business details.
The Benefits of Arbitration
Although arbitration may not be right for everyone and has a few drawbacks, it is clear that in most instances, arbitration provides many advantages over traditional litigation in the court, including: enhanced privacy and confidentiality, cost savings in some situations, the ability to select a fair and qualified decision maker, the ability to tailor the process in a way that suits the parties, flexibility, convenience, and finality.
Mediation-Arbitration in Family Law
Med-arb is a pragmatic way to resolve family law issues in ADR. When the parties enter into a med-arb agreement, it may fairly be said that the case is over, in the sense that everybody knows it will come to an expeditious end. In the course of the mediation phase, although nothing will be prejudged, the parties are much more likely to be sensitive and responsive to the recommendations of the mediator. The prospect of settlement is enormously enhanced.