Couples going through divorce often do not want to deal with the financial and emotional cost of going to trial. However, when they cannot reach a final decision as to how to settle certain matters or how to divide assets, it may become necessary to seek outside help. In such cases, alternative dispute resolution (ADR) is available. ADR is a legal method of settling disputes without going to court.
- ADR can help resolve issues couples may have concerning:
- The division of property
- Spousal support
- Child support
- Child custody
There are several methods of ADR available including arbitration, mediation, and collaborative divorce. With over 40 years of collective experience, our San Bernardino divorce attorneys at the Law Office of Michael R. Young can handle any family law matter you face. We are AV® rated by Martindale-Hubbell®, a prestigious attorney rating organization, and have obtained other recognitions over the years.
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Arbitration is an adversarial proceeding that is similar to a regular trial. In arbitration, a paid arbitrator acts as judge, listens to the evidence presented by each party, and makes a final decision based on the facts presented. Like a trial, arbitration allows both parties to conduct discovery and present evidence. However, the overall process of arbitration is usually more relaxed than a trial. Discovery may be limited or simplified and the rules of evidence usually followed by the court are generally much more relaxed.
- There are two types of arbitration, binding or non-binding:
Binding arbitration means you cannot appeal the arbitrator’s decision once it is made. In binding arbitration, both parties agree to give up their right to a trial and accept the arbitrator’s decision as final. This method is most useful for people who cannot come to a resolution on their own and want a third party to make the ultimate decision.
Non-binding arbitration allows either party to appeal the decision and request a trial if they do not like the decision made by the arbitrator. It is not uncommon for parties to use a non-binding arbitration process as a method of determining the strengths and weaknesses of their case prior to initiating a trial proceeding.
The Purpose of an Arbitrator
An arbitrator is a neutral, unbiased, and independent third party chosen to help moderate an arbitration proceeding and settle a dispute. The job of an arbitrator is similar to that of a judge.
An arbitrator must do the following:
- Interpret and apply any laws, instructions, and rules that are applicable to the arbitration
- Listen to the testimony presented by both sides
- Review any evidence provided
- Issue a final decision regarding the proceeding
In binding arbitration, the arbitrator’s decision is final and is not appealable like it would be in a normal trial. However, in non-binding arbitration either of the parties can appeal the decision and ask for a trial.
What Qualifies Someone to Be an Arbitrator?
The qualifications of an arbitrator vary depending on the type of arbitration. An arbitrator for a divorce proceeding is usually an attorney or a retired judge with extensive knowledge of family law. However, an arbitrator can be any qualified person that is capable of resolving the dispute. In certain situations it may be in your best interest to choose an arbitrator whose experience is in an area other than family law, such as real estate, if that is more suited to your situation. You should discuss with your attorney what qualifications and experience an arbitrator should have in order to best meet your needs.
What Is an Arbitration Agreement?
An arbitration agreement is a written agreement that sets out the rules, laws and instructions to be used during arbitration. Usually, the agreement is written by the parties’ lawyers and agreed to by the parties prior to the proceeding. An arbitration proceeding does not have to cover every single issue in the divorce. Arbitration allows the parties to arbitrate only those issues that are contested. For instance, if both parties have agreed to a custody arrangement, then that does not need to be part of the arbitration.
The most important aspect of the arbitration agreement is that it accurately reflects how the couple wants to conduct the process and issues that the couple wants to arbitrate.
If child custody is an issue, the arbitration agreement can authorize the arbitrator to appoint a neutral mental health professional to interview the parties and/or their children in the event that such an evaluation is required or wanted. In addition, the arbitration agreement should also include such things as how the arbitrator is to be paid and who is responsible for payment.
What Law Is the Arbitrator Required to Follow?
Generally, the court applies the law of the state where the divorce was filed so long as one person in the marriage has met the residency requirement. In California, one of the partners has to have been a resident of California for at least six months and a resident of the county where the divorce was filed for three months. An arbitration proceeding will be required to follow the same law. However, the law regarding the distribution of assets is different. How assets are divided is usually based on the law of the state or states where the couple lived. If during the marriage the couple lived in several different states, the arbitrator may be required to apply the law of the other states to portions of the divorce settlement.
For example, if you lived in Arkansas (an equitable division state) for the first 3 years of your marriage, but then moved to California (a community property state), the arbitrator may have to apply Arkansas law to any property that was acquired during those 3 years.
If you have lived in more than one state, you should check with your attorney how the law applies to you and whether or not you can specify in the arbitration agreement to abide by the law of only one state.
How Do I Find an Arbitrator?
Your attorney can help you choose an arbitrator that fits your needs. Additionally, your local court may maintain a list of arbitration professionals that are qualified to meet your needs.
What Are the Pros & Cons of Arbitration?
- Arbitration provides many benefits that going to trial cannot:
Arbitration is usually much faster.
The court system sets trial dates based on the court’s availability and because the court must serve thousands of people, the court may not be able to hear your case for several months. Arbitration allows you to set your own date and resolve your issues on your timetable not the court’s timetable. (However, you are still subject to California’s requirement that divorcing couples wait before the divorce is finalized.)
Arbitration is private.
Arbitration is private. The public is not allowed to attend these meetings and arbitration makes it much easier to seal private divorce records, which would normally be made public. The issue of privacy can be extremely important in relation to sensitive subject matter, such as custody arrangements and financial information. In a regular trial, the public is not only allowed to sit in and listen to the entire hearing, but any records made during the trial become part of the public domain, meaning anyone can have access to anything that was discussed during your divorce.
You can choose your own location.
Arbitrations can be performed at any suitable location.
Arbitration is informal.
Because arbitrations are held in a private location, the setting itself is generally much more relaxed than what you would find in a courtroom. A relaxed setting may encourage parties to speak more freely when presenting their case, which ultimately helps in resolving the issues between spouses.
Arbitration agreements can be binding.
An arbitration agreement can be binding on both parties. This means both parties are legally required to follow the decision of the arbitrator and the decision cannot be appealed to the court. However, couples can also choose non-binding arbitration.
You can choose your arbitrator.
Unlike a trial, where you are assigned a judge, arbitration allows you to pick who is going to preside over your case. Choosing your arbitrator allows you to pick someone that you are comfortable speaking with regarding sensitive issues. You should be careful to choose someone who has substantial legal knowledge of family law and the law regarding any other legal aspects of your case.
You can set out the guidelines you want the arbitration to follow.
Prior to the actual arbitration proceeding, you and your spouse can specify in the arbitration agreement what rules you would like to be applicable to the arbitration. For instance, you can tell the arbitrator how long he/she has to make a final decision.
You can choose which issues require arbitration.
Couples can choose to arbitrate only the issues that are contested. Being able to choose allows for a more cost effective arbitration and a much faster arbitration.
- The costs of arbitration:
Arbitration can be binding:
Unlike mediation, arbitration agreements can be binding (with the exception of child support and child custody agreements, discussed below). A binding arbitration is NOT appealable. This means that you cannot go back to court and ask a judge to change the agreement. This can be a problem if you feel you did not get a fair opportunity to present your case. If you choose binding arbitration, it’s important that you and your attorney ensure that everything you need to have presented is presented.
It is an adversarial process:
Like a trial, arbitration is adversarial, which means that the couples do not or cannot agree on certain elements of their divorce and they require a third party to make a decision for them. An adversarial process is more stressful and one or both of the parties may be unhappy with the arbitrator’s decision. When someone is unhappy with a decision made by the trial court, that person has the option to appeal the decision. However, that option is not available in a binding arbitration process.
Arbitration & Child Support
In general, the court prefers that couples settle their differences without going to court. Accordingly, the court supports agreements related to child support being made through arbitration. However, it is against public policy for the parties to enter into binding arbitration agreements when it comes to child support.
Under California law:
“Children have the right to have the court hear and determine all matters that concern their welfare and they cannot be deprived of this right by any agreement of their parents.”
In re Marriage of Bereznak (2003) 110 CA 4th 1062. Accordingly, child support is always modifiable and the amount and type of child support is always appealable to the courts.
What Process Do I Need to Follow to Start Arbitration?
Typically, couples or their attorneys inform the court that they have decided to seek arbitration rather than go to trial. To do this, sign a “consent order.” After you sign and deliver the consent order to the court, the judge then signs the consent order and you are free to take your case to the arbitrator.
Understanding the Mediation Process
Mediation is a fair and efficient process that helps divorcing couples resolve their disputes and reach a favorable agreement for all involved. A neutral mediator assists both parties in reaching a voluntary, negotiated agreement to spousal support, child custody, child support, visitation, and property distribution. With mediation, a lengthy and costly trial can be avoided.
Mediation starts with both parties coming together to discuss the various issues that are involved in the divorce case. Both parties will need to provide the other with information regarding separate and jointly owned assets, including real estate, bank accounts, investment accounts, automobiles, debts, etc. In some instances, this information may be gathered before the initial meeting actually takes place. The main goal of mediation is resolving any issues between the parties as amicably as possible.
What Is the Difference Between Mediation & Arbitration?
Mediation is less adversarial than arbitration and can be used when the parties involved generally agree, but may need someone to help facilitate the process. Mediation is essentially a discussion between partners where a third person helps facilitate discussions related to issues they are having problems resolving. Unlike an arbitrator, a mediator does not determine the outcome of the situation.
Mediation is not advisable for couples who cannot come to an agreement.
There are two types of mediation:
In this type, you and your spouse will meet with the mediator without counsel. However, it is important that you understand that, even though the mediator might be an attorney, the mediator is not your attorney. You have no client-attorney privilege and the mediator cannot give you advice on how to settle your disputes. You should consult with your attorney prior to going to mediation.
In this type of mediation you, your spouse, and your attorneys meet with the mediator. This type allows you to be able to talk to your attorney and get advice that is specific to you and your needs.
What Does a Mediator Do?
The mediator’s main job is to facilitate the discussion process between spouses. When couples are in agreement, then a mediator’s job is relatively easy. However, it is not uncommon for couples to agree on some things, but not on others. In those cases, the job of the mediator is to keep the lines of communication open and encourage couples to work through their differences.
Additionally, mediators can help brainstorm solutions, present possibilities and make suggestions that the couples hadn’t thought about. In mediation, the mediator, unlike an arbitrator, allows the couple to make the ultimate decisions related to the different elements of their divorce.
What Are the Pros & Cons of Mediation?
The benefits of mediation:
Mediation is cost-effective.
Often, attending a mediation session(s) costs less than a trial would.
Mediation is confidential.
Discussions between you, your spouse, and mediator are confidential and not part of court records.
You are in control of the process.
Because it is essentially private negotiating, you control how the process works and can determine the number of meetings you have, how long they will last, and who will act as your mediator.
Mediation is non-adversarial.
Mediation is basically a discussion where you and your spouse collaborate on how to settle your divorce. Mediation’s non-adversarial process allows the parties to be as flexible as they want in order to reach a mutually agreeable settlement. Additionally, the mediation process is designed to maintain the relationship between the parties in order to prevent a breakdown in communication. This is especially beneficial when children are involved. It helps reassure children that despite their parent’s separation, the parties involved will still have an ongoing relationship.
You do not have to go to court.
Determining your divorce settlement through mediation allows you to stay out of the courtroom.
The cons of mediation:
Mediation is not advisable when there was abuse in the relationship.
While an amicable settlement is preferable, not all parties will be helped. This is especially true when the marriage relationship was characterized by either physical or mental abuse. Parties who have suffered abuse in the marriage may find that mediation is not the best solution for them. There is the very real possibility that the unequal dynamics of the marriage will reemerge in the mediation process, which would put one partner at a disadvantage in the divorce settlement.
Mediation is not advisable in situations where the parties cannot agree.
Mediation is based on facilitation and a general agreement between parties. However, if you and your spouse have hit an impasse and cannot agree on a solution, mediation will likely not be very helpful. Unlike an arbitrator, a mediator cannot make a decision on how to resolve issues.
Mediation can take a long time.
An average divorce mediation proceeding can take anywhere from fourteen to twenty hours (seven to ten two-hour meetings) when children are involved and ten to fourteen hours without children.
Mediation Is Mandatory in Child Custody Adjudication
When a divorce involves custody, the California courts have a mandated mediation program. In these cases, the court has usually assigns a mediator. However, in custody mediation, only the issue of custody is discussed; issues relating to property division and spousal support must be mediated elsewhere.
California also recognizes a third ADR process called collaborative divorce (“conscious uncoupling”). In a collaborative divorce, the couple and their attorneys meet regularly to negotiate a divorce agreement. Prior to initiating a collaborative divorce, both parties create and agree to a “participation agreement.”
The Participation Agreement
Similar to the arbitration agreement, the participation agreement sets out the provisions that will be followed in the negotiation process. These provisions often include an agreement that:
- Issues will be resolved in a non-adversarial manner
- Both parties may rely on advice of counsel during the negotiating process
- Neutral outside experts may be consulted
- The parties will act in the best interests of their children
Additionally, the agreement should set out the parameters of what to do if the negotiating process fails and the reasons for terminating the negotiation process prior to resolving the outstanding issues.
Which Form of ADR Is Best for Me?
If there are areas where you and your spouse cannot agree and you need an outside party to assist you, then arbitration will likely work best. If you and your spouse have good communication and agree on most things, then mediation or collaborative divorce may work for you.
However, it is not uncommon for couples to use more than one form of ADR.
The type of ADR that is best for you will depend on your situation. Each form of ADR has its pros and cons and one type of resolution may work for you, while another doesn’t. Prior to agreeing to any form of ADR, you should discuss all of your options with your attorney. With the help of an experienced San Bernardino divorce attorney, navigating the various forms of ADR will be much simpler. In addition, your attorney can advise you of your best options as you decide on child support, property division, and more.
For a free consultation, call our firm at (909) 315-4588!
- Thinking about filing for divorce
- Concerned about custody of your children
- Worried about the division of your property
What is a contested divorce
When spouses don’t agree on an issue, whether it involves child custody or spousal support, a divorce is considered contested. It is the most complicated type of divorce, as a couple will need to go through numerous steps to finalize their divorce. Since contested divorces often go to divorce court with a judge, having legal representation during the trial is crucial.
How is spousal support or alimony calculated
There are numerous factors considered when a judge is determining how much and how long alimony should be paid. Some of those factors include the earning capacity of each spouse, how long the marriage lasted, the standard of living during the marriage, each spouse’s health and age, marital debts and property, and the sacrifices each spouse made during the marriage (such as staying at home with the children so the other spouse could work).
Who pays child support and how is child support determined
The noncustodial parent will be responsible for child support if the court determines it is necessary or parents come to an agreement to be approved by the court. The factors used to determined child support include the income / earning capacity of each parent, the number of children shared, each parent’s expenses, child care expenses, and other related issues.
How is property divided
California is a community property state. That means each spouse is given 50% ownership of the property accumulated during the marriage. This can include homes, vehicles, art, checking accounts, retirement / pension funds, small businesses, and other valuables. Items, accounts, or valuables that were kept separate throughout the entire marriage may be considered separate property and are therefore not subject to property division laws.
How long does it take for a divorce to be final
This can depend on a number of factors, such as whether it is a contested or uncontested divorce. Even if a divorce is uncontested, there is a six-month waiting period in California for the judge to grant a divorce. Likewise, those seeking contested divorces must wait six months for a trial to be ordered. How quickly a divorce is finalized will also depend heavily on how easily spouses agree on matters such as child support, property division, alimony, child custody, and other important matters.
Why should I hire a family law and divorce attorney
Going through a divorce or family law dispute can be complicated, confusing, and emotional. Regardless of whether spouses or family members think they are on the same page, having an attorney who is looking out for the best interests of the client can be invaluable. When you hire an attorney, you can have peace of mind knowing your rights and interests will be protected throughout the process. It can also take a great burden off your shoulders during a volatile or emotionally challenging time.
With more than 40 years of combined experience, our divorce and family lawyers are compassionate, caring professionals.
e understand how challenging family law disputes can be, whether involving a heated child custody battle or a complex divorce. As a firm with an AV Preeminent® rating and a 10.0 Superb Avvo rating, we are committed to maintaining a standard of excellence in our representation. Why? Because we know that your family and your future is on the line. When you retain us, you are getting understanding, knowledgeable advocates on your side.
With over four decades of collective insight, we are well-versed on handling even the most complex family law issues in California, from grandparents’ rights to domestic violence and restraining orders. When you need a compassionate family law attorney that you can trust to have your best interests in mind every step of the way, turn to our firm.
Our legal team strives to secure a favorable resolution as quickly as possible—whether in or out of court. Call us now at (909) 315-4588 to schedule your free consult.
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