Alternative Dispute Resolution – Arbitration

Family law cases can be stressful.   Although not always an option in all cases and in all claims, many families have found more flexibility by resolving their claims through means which do not directly involve the court.  These means are collectively referred to as methods of “alternative dispute resolution.” These methods can involve all issues stemming from a marriage including spousal support, equitable distribution of property, child support, child custody, and other matters.

Arbitration Attorneys in Mecklenburg + Union County

One type of alternative dispute resolution often used in family law matters is “arbitration.” The knowledgeable Charlotte divorce and family law attorneys at Weaver, Bennett & Bland, P.A. are experienced in dealing with arbitration. Depending on your circumstances, an alternative method is “mediation.” Contact us at (704) 844-1400 to schedule a consultation and to discuss which method may be appropriate for your situation.

What is Arbitration?

The North Carolina Family Law Arbitration Act allows for all issues and claims resulting from a marriage to be arbitrated, with the exception of the divorce proceeding itself.  Arbitration closely resembles traditional court proceedings. The parties and their attorneys select a third-party neutral to act as an “arbitrator,” and prior to the arbitration, the parties meet and enter into an arbitration agreement. Then, the parties, their attorneys, and the arbitrator will meet together, and the parties will present their case to the arbitrator in the same format as they would a judge.  There are opening statements, direct and cross-examination of witnesses, presentation of evidence, and closing arguments.

Binding or Non-Binding Arbitration?

The North Carolina Family Law Arbitration Act provides some basic guidelines for the process and procedure of the arbitration; however, the form of the arbitration and the impact of its outcome is largely up to the parties themselves. The most important decision is whether or not the decision made by the arbitrator is going to be binding or non-binding.

Non-binding arbitration, as the name suggests, means that the decision of the arbitrator is not binding on the parties. If the parties are dissatisfied with the outcome of the arbitration, they may disregard that ruling and proceed directly to the district court and pursue traditional litigation in order to resolve their claims. Binding arbitration, however, binds the parties to the decision reached by the arbitrator in all but a few narrow exceptions.

How is Arbitration different from Mediation?

At the end of the arbitration, the arbitrator will issue a decision much like a court would. This is different from a mediation, in which the parties collaboratively come to decisions and negotiate the terms of their various marital claims. Instead, it is the arbitrator who decides the terms and conditions of the agreement. At this time, the agreement can be submitted to the court and entered as a judgment.

Additionally, unlike mediation, arbitration is not necessarily confidential.  Whether or not your arbitration session will remain confidential depends on the arbitration agreement entered into by the parties. Moreover, arbitration does not allow for the flexibility mediation offers, as the ultimate decision-making power is largely taken out of the parties’ hands and placed into those of the arbitrator. Finally, the trial preparation required by your attorney in an arbitration is comparable to that required for a hearing on the issue before a judge, meaning that arbitration is much more costly than mediation.

However, in complex cases or in cases where it’s unlikely that the parties will be able to come to some sort of negotiated settlement, arbitration is still a good alternative to litigation, and the arbitration agreement can ensure that the proceedings are held in confidence.