When discussing arbitration with your legal counsel, you will want to talk through the potential advantages and disadvantages.
Advantages of divorce law arbitration include:
- The ability of participants to decide who will be their judge. Parties can select an arbitrator with particular expertise, such as business valuation, retirement plans, tax, nonmarital tracing issues, mental health, etc.
- More privacy.
- Quicker trial dates and pre-arbitration conferences, which also may result in less expense and tension.
- Swiftness of decision making.
- Less formal.
- The arbitrator has all the time you need to put on your case.
Disadvantages voiced by some include:
- Perception that there cannot be binding child custody decisions. (Maybe but not necessarily true; usually are subject to trial de novo if the court concludes the award is contrary to a child’s best interest.)
- Beliefs that parties are not protected by rules permitting discovery and required financial disclosure. Under the Uniform Arbitration Act mechanisms for disclosure are provided. In the arbitration agreements, parties may have the arbitrator supervise the discovery, or the parties may complete discovery and then arbitrate.
- Fears that the arbitrator will be able to ignore the law. While an arbitrator’s mistake of law does not generally provide a basis for refusing to confirm an award, the parties can agree that the arbitrator will be bound by the substantive law of the state.
- Inability of the arbitrator to enforce an award. Awards are tendered to the court and after confirming the award, all remedies for enforcement are available in court as with any other judgment.
- The parties must pay for the arbitrator’s time
Of special note in Kentucky is the 2010 depublished Campbell v. Campbell case and its dicta on the constitutionality of divorce arbitration. 2006-CA-001803-MR (Ky. App. 2010). The Supreme Court of Kentucky, as well as the state’s Appellate Courts continue to compare arbitration to other types of binding contracts and note a legislative preference for arbitration. Agreements to arbitrate and the subsequent arbitration award are upheld, as long as they conform to basic contracting principals and the KUAA guidelines. Family law practitioners should discuss the risks of arbitrating family law matters with their clients keeping the Campbell case in mind.
This is an update by Elizabeth M. Howell of a blog post “THE ADVANTAGES AND DISADVANTAGES OF DIVORCE ARBITRATION” originally written by Diana L. Skaggs in October 2006.