Arbitration

Divorce arbitration is a binding dispute resolution tool that gives couples and families flexibility and finality to choose their decision-maker and resolve their case outside the courtroom.

Submitting your dispute to arbitration can help resolve matters quickly and privately, under the guidance of an experienced attorney. Before you submit your case to arbitration, be sure you talk to your family law attorney. It will be important to discuss who will be your arbitrator, what they will be deciding, how to present your case, and what will happen If you disagree with the arbitrator’s decision.

If you have a divorce or child custody dispute and want to consider taking the matter out of court, be certain to hire a family law attorney who understands when and how to use arbitration to get you the binding decision you need.

Contact us today to schedule a consultation with one of our Michigan divorce arbitration attorneys to discuss your dispute resolution options.

What is Divorce Arbitration?

Arbitration is an alternative to an in-court trial. It is a form of Alternative Dispute Resolution (ADR) where both parties agree to appoint a private attorney, usually someone with experience or a specific area of expertise, and often a retired judge, to settle outstanding issues such as:

The arbitrator is a neutral third party who acts like a private judge. When there is a dispute that can’t be resolved through negotiations, an arbitrator can review the positions of the parties and make a decision based on the facts as presented, and the applicable law.

Parties can submit their entire case to arbitration, or just one or more discrete issues. This makes it an effective tool to resolve deadlock. It is a process most often used to decide which party will be awarded each disputed item of personal property, such as precious metals, holiday decorations, family photographs, furniture, kitchen items, artwork, and motor vehicles.

An arbitrator cannot make a decision regarding an initial custody determination or to change custody. This may, depending on the circumstances, limit their ability to decide a move-away or school choice issue.

In Michigan, divorce arbitration results in a final, binding arbitration award you can enforce in court.

Divorce Mediation Versus Arbitration

Divorce mediation and arbitration share the goal of resolving families’ disputes without going to trial. However, the methods they use to get there are generally different. In mediation, a trained facilitator acts as a go-between for parties and their attorneys. The mediator helps the parties talk through their options and negotiate a compromise. However, if the parties can’t reach an agreement, the case goes back to court.

In arbitration, the parties agree to give the arbitrator the final say on the issues they are trying to resolve. The arbitrator will set the procedure for how they will reach that decision. They may:

  • Have each party submit a written position statement with exhibits
  • Assist the parties in a negotiation session similar to mediation prior to taking testimony and entering other evidence
  • Hold a structured meeting similar to a trial where each party can present their position and evidence

Whichever process they use, at the close of arbitration, the arbitrator will issue a final and binding decision resolving each issue.

Advantages to Divorce Arbitration

Like any form of ADR, there are advantages and disadvantages to choosing arbitration. Many people choose it because:

  • They get to choose the arbitrator, so their cases are heard by an expert in their particular issues
  • Parties can avoid having their case decided by a judge who has a history of disfavoring their life choices
  • Hearings are private and confidential and protect personal information from becoming part of the public record (court proceedings are public)
  • Arbitration generally can be scheduled faster than the court docket allows and takes less time than a court case
  • Sessions tend to be less formal than court hearings, allowing more flexible presentation of issues (such as when the primary evidence involves hearsay statements)
  • Appointments are scheduled with the arbitrator so no other cases compete for attention and the parties can take the time they need to present their cases
  • Attorneys are present to help

Limits on Appealing an Arbitration Decision

Arbitration has its drawbacks. In addition to the added cost of hiring a private arbitrator, the biggest drawback is the limited options to appeal an arbitration award. Once the arbitrator makes a final recommendation, it is submitted to a judge, who must incorporate it into a final order or Judgment of Divorce (unless the arbitrator has broken very limited rules). This means you cannot submit your case to arbitration and then, without meeting the legal threshold, ask the judge to review the issue if you disagree with the outcome.

However, if you choose to arbitrate an issue like child support, which is modifiable under certain circumstances after the judgment is entered, either party can still file a motion to modify the arbitration decision if the legal threshold for a change is merited.

Your attorney can help you understand how to appeal an arbitration decision in your case, or if it is even possible to do so.

Is Divorce Arbitration Right for Your Case?

Not every case should be submitted to arbitration. However, the process works well for:

  • Cases where each spouse wants finality, without the risk of ongoing litigation
  • Cases in counties where the court has trouble scheduling cases quickly or tends to limit the length of trial
  • High-net worth families with complicated financial portfolios that require special tax considerations and expertise
  • Families with religious or philosophical backgrounds that affect their priorities when a civil court may not be culturally deferential to the family or parties

How to Submit a Family Law Case to Arbitration

If you want to submit your case to arbitration, you and your spouse or co-parent will generally need to sign an agreement to arbitrate, describing which issues will be arbitrated, and by whom, and setting the rules for that arbitration including payment requirements. In Michigan, there is a long list of terms such as waiver acknowledgments that your agreement to arbitrate must include under the Domestic Relations Arbitration Act. The arbitrator’s authority is determined by the contract the parties sign, so the arbitration agreement itself needs to be carefully reviewed and negotiated. Violating the terms of that agreement by exceeding the scope of the arbitrator’s authority is one of the few ways an arbitrator’s decision can be overturned.