In last week’s blog post, I addressed common questions regarding Mediation in Alternative Dispute Resolution. This week I will discuss Arbitration.
What is Arbitration?
Arbitration is another ADR process available. Arbitration is a process similar to a trial where parties present their evidence and testimony. In arbitration, each party, by and through their attorney, present their position to an impartial person who ultimately renders a decision.
An arbitration is presided over by an independent third party who has no interest in the outcome of the dispute. This person is called the Arbiter or the Arbitrator. The Arbiter typically has specific expertise in the field in which the dispute has arisen. With an expert presiding over the dispute, the parties can benefit from the particular understanding and analysis of the facts an expert can provide.
When is Arbitration Binding?
Arbitration can be binding or non-binding and it can address all or a portion of the contested issues between the parties. Non-binding arbitration can be required by a court order, while binding arbitration is utilized only by an agreement between the parties.
If the parties stipulate in advance, the award or judgment of the arbiter is binding and is enforceable in the same manner as any contract obligation. If the parties do not stipulate in advance that the award is binding, the award is not binding and serves only as a basis for the parties’ further settlement negotiations. Binding arbitration takes away any control over the outcome from parties. Binding arbitration is not typically an ADR choice in family law cases for the reason that it puts the outcome completely in the hands of the arbitrator.
Arbitration and Family Law
Binding arbitration is not typically used in family law cases for the reason that it puts control of the issues into the hands of the arbitrator. However, as with all other areas of law, the right to arbitrate is nearly absolute. The most common use of arbitration in family law is in resolving drafting disputes or disputes involving the interpretation of a Mediated Settlement Agreement (MSA).
As in Mediation, you should have your attorney review the agreements to ensure that they are in your best interests before signing the MSA. Additionally, even if the parties are unable to reach an agreement on every issue, you should at least try to reach settlement in as many issues as possible and submit these to the Court in the form of a Mediated Settlement Agreement.
Sam M. “Trey” Yates, III is a Houston-based Board Certified Family Law Attorney and creator of The Guide to Good Divorce seminars for women. If you have questions about your Houston divorce, custody dispute, modification, or property division, please contact The Law Office of Sam M. “Trey” Yates, III, P.C. for a consultation.