Term Paper on "Arbitration and Its Relation to Family Law"

Term Paper 17 pages (4559 words) Sources: 30

[EXCERPT] . . . .

Arbitration and Its Relation to Family Law

Arbitration "Wait 'til court and see what the judge decides." Two increasingly popular, alternative dispute resolution methods to the often tension tainted threat, "wait 'til court and see what the judge decides," arbitration and mediation, can currently serve as a remedy to some conflicts in family law, as well as help resolve some litigation shortcomings. Some individuals, however, whether at their worst or best, admit they do not understand the difference between arbitration and mediation. Originally, the Federal Arbitration Act (FAA) constituted a procedural statute designed for commercial arbitration between business entities.

Currently, no matter what the cause of action, when a contract falls within the Commerce Clause's reach, the FAA creates a preference for arbitration over litigation.

States may not carve out areas in which arbitration is thought to be inappropriate or in need of special regulation; any state law that is specifically directed at arbitration, as opposed to contracts generally, is preempted by the FAA. The Court tends to look at arbitration as if it were merely a change of venue, comparable to moving a dispute from Virginia to Maryland Even if the arbitration clause is contained in an adhesion contract, it must be enforced unless it can be invalidated under general principles of state contract law. With the support of this legal framework, banks, insurance companies, phone companies, Internet service providers, e-commerce merchants, and sellers of consumer goods and services routinely include mandatory arbitration clauses in their standard-form contracts.

Arbitration in family law, however, is not mandatory. As this paper addresses the issue of arbitration in the family law sphere, it purports to determine when and how arbitration should be used in the family law scheme. It also considers whether it is advisable to utilize arbitration in family law scenarios.

When parties elect to use arbitration in family law cases, an attorney represents clients and acts as an advocate for his/her client, as he/she presents the client's case to an arbitrator, rather to a judge at trial.

In this alternative to having a judge decide their case in court, both parties "select a neutral lawyer" to represent them. Arbitration presents a positive alternative to parties involved in family law disputes as it can shorten the delay in securing a resolution, decrease time hassles and lower expenses accompanying a trial. In one sense, arbitrators, basically similar to a judge, make decisions about evidence and present written opinions, which may be binding or non-binding. At times, arbitration is performed with one arbitrator [may or may not be lawyer], however, usually each side selects an arbitrator and then in turn, the two chosen arbitrators select a third arbitrator. "The dispute is then presented to the three arbitrators chosen, with a majority of the arbitrators rendering a written decision." In addition to "arbitration's relative informality and substantial limitations on discovery and the right to appeal, which generates savings in both time and cost," another perk in arbitration is the fact that representing attorneys need to possess more knowledge of their case when launching or preparing to defend it than usually required to know during a lawsuit's early stage. "In litigation, by the time the attorneys select the jury, they have generally lived with the case for years."

In arbitration, albeit, the arbitrator selection process begins with the administrative conference, right after the case is filed.

Depends on

During this conference, both parties' counsel may tell the case manager they kind of they prefer on the list of potential arbitrators. Arbitrator preferences may include:

Male or female;

young or old;

experienced or inexperienced;

employed (full time or part time) or retired; a lawyer or non-lawyer."

If an arbitrator is not a lawyer, he/she may be "an accountant, business person, or technical expert."

He/she may also be an "in-demand" arbitrator, juggling a full calendar or an arbitrator free to accept a case immediately; "an entrepreneurial or 'establishment' type of person; a naturally bright high achiever or a serious hard worker; or a proactive or laid back individual." To help ensure arbitrators are qualified and sympathetic, representing attorneys need to understand their clients' personalities, their strengths and weaknesses and their chain of logic as well. "The ideal arbitrator always depends on the particular case."

Mediation in mediation, albeit, a single mediator usually conducts the dispute, but s/he does not judge the case, but instead, helps facilitate a discussion and eventual resolution of the parties' case. In Florida, which currently reportedly leads in mediation implementation of mediation, most lawsuits must be mediated before a court will allow the parties' dispute to be scheduled on the trial calendar.

Voluntary mediation may be employed to settle any kind of dispute and can evade a lawsuit or judge-ordered mediation. Pre-suit mediation, currently becoming a more accepted way to sensibly resolve disputes, abort the threat of litigation and are confidential and non-binding. Compared to litigating a lawsuit, mediation can serve as a relatively quick and inexpensive alternative. In Florida, mediation reportedly reduces the courts' trial dockets and effectively resolves approximately 75% of cases. Part of mediation's success rate evolves from parties being brought together in a neutral environment to confidentially present their case to a mediator, a neutral third party. After hearing all sides of the story, a mediator then attempts to "limit the issues and put them in perspective."

Traditionally, mediation has been used in family law situations. Unless one of the parties files a lawsuit requesting the court to enforce it, however, a court will not enforce a private mediation or an arbitrator's decision. The court will, however, enforce a signed mediation agreement.

Ways arbitration and mediation are similar include:

Both serve as alternatives to litigation, or sometimes are "used in conjunction with litigation to attempt to avoid litigating a dispute to its conclusion."

Arbitration and mediation both employ a neutral third party.

Arbitration and mediation may be binding; albeit, parties traditionally employ mediation "as a non-binding procedure and arbitration as a binding procedure."

Compared to Going to Court

Compared to having a dispute settled in court, arbitration is:

Fast: With the over-crowded court system and not enough judges, it may take months for a case to secure a scheduled trial date. Mm Arbitration, on the other hand, can proceed whenever parties, attorneys and arbitrator are ready and to schedule meetings.

Convenient: Parties and attorneys elect to schedule arbitration for mutually agreeable times, not an option for trials.

Private: Unlike hearings in open Court, on the record with spectators, arbitration occurs in an attorney's conference room, without spectators. With exception of "custody, parenting time and support issues, which must be recorded," unless participating parties decree otherwise, the proceeding occurs "off the record."

Informal: In trials, particular procedures and rules of evidence must be adhered to, while in arbitration, parties set their own rules, usually much less formal than a trial.

Flexible: Participating parties may choose particular rules to apply, limit issues the arbitrator can decide, as well as range of options arbitrator must choose from. A judge maintains control at a trial.

Inexpensive: As arbitration requires less time than Court hearings, any extra costs paid to an arbitrator is offset by attorney's fees charged while attorney waits in Court.

A dispute that might require a weeklong trial can generally be arbitrated in one day. A motion at court that takes 2-4 hours might be decided in 1/2-hour to 1 hour in arbitration.

Finality:

Grounds to appeal the decision from arbitration are more narrow and limited than appeals regarding the decision a judge makes. Consequently, arbitration more likely aborts the litigation process.

Challenges in Arbitration

An individual cannot arbitrate unless both parties agree to the process.

A person relinquishes his/her the right to veto any settlement proposals.

A mediator cannot force a person to accept a particular settlement offer, however, an arbitrator can. On the other hand, this may constitute an advantage, as the opposing party likewise relinquishes his/her right to veto settlement proposals.

Grounds to appeal an arbitrator's decision are restricted; consequently parties will most likely have to live with the arbitrator's decision. This, albeit, could be conceived as positive as neither party will be threatened with the prospect of a trial.

A party may have to attend Court; however, to enforce the decision if one refuses to abide by the arbitrator's decision, also true if after a trial, a party does not adhere to Judge's decision.

A person has to pay the arbitrator, not a judge. Traditionally, parties split the arbitrator's fee, however this is open. Although arbitration may add up to be more expensive than a prompt, winning negotiated settlement, it will likely "be less expensive than a protracted negotiation or mediation, and certainly less expensive than a trial."

The following figures (1 & 2) reflect differences between a mediator/mediation and an arbitrator/arbitration.

Figure 1: A Mediator Compared to an Arbitrator

Figure 2: A Mediation Compared to an Arbitration

Figure (3), which follows, relects advantages and disadvantes of arbitration.

Figure 3: Advantages & Disadvantages of Arbritation

During this… READ MORE

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