Arbitration of Family Disputes - Non-Binding Arbitration

Advantages and Disadvantages | Non-Binding Arbitration | Voluntary Binding Arbitration   
Qualifications & Professional Standards for Arbitrators | Additional Resources  

There are two ways to begin non-binding arbitration: 1) the Court can order all parties to arbitration, or 2) all sides can agree to go to arbitration. Either one arbitrator or a panel of three arbitrator s are selected by the parties to the dispute or by the Court who orders arbitration. Arrangements are made in advance to pay for the costs of the arbitrator or arbitrators.

A date is scheduled to hold the arbitration. The arbitrator, or in the case of a panel of three arbitrators, the chief arbitrator, has the power to administer oaths and to issue subpoenas and to conduct the arbitrator proceedings. The hearing is conducted informally. Presentation of testimony is kept to a minimum. Matters are presented to the arbitrator or arbitrator panel primarily through the statements and arguments of counsel. The arbitrator may ask questions of both sides to better understand the dispute.

After hearing everything presented at the arbitrator hearing, the arbitrator makes a decision. In the case of a panel, the decision must be a majority decision. The decision must be made in writing within 10 days of the hearing, although it is usually given orally at the conclusion of the arbitration and then reduced to writing and sent to everyone shortly thereafter. The decision must describe the issues in dispute and the arbitrator's conclusions and finding of fact and law. The decision and any transcripts of the proceedings are then sealed and placed in the court file. The trial judge assigned to the case is not notified of the decision in order to give all sides the opportunity to consider their alternatives.

Each side has 20 days from the date of the arbitration decision to request a trial de novo. A trial de novo means a trial before the court. The arbitrator decision becomes final if neither side requests a trial de novo. The judge in the case is then presented with the arbitrator's decision and enters an order to carry out the terms of the arbitration decision.

If a trial de novo is requested, the case proceeds to trial as in any other family law matter.

However, the party who requested the trial de novo may be assessed all arbitration costs, court costs and other reasonable costs of the opposing party, including attorney's fees, investigation expenses, and expert testimony incurred after the arbitrator's decision if the judgment in the trial de novo is not more favorable than the arbitrator's decision. The decision to request a trial de novo must therefore be carefully considered.