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Private Arbitration in Family Law

Private Arbitration in Family Law

Private Arbitration in Family Law

Jeff J. Horn  – NJ Family Law Attorney

Arbitration in Family Law – Advantages

  • Control is the primary advantage to private arbitration in family law.
  • Your family law attorneys control part of the process.
  • You control when the hearings will be conducted.
  • Clients and family law attorneys direct the focus of the arbitrator.
  • You and your family law attorneys select the arbitrator. As a result, you have the power to select a lawyer or retired judge with experience in your particular family law dispute.
  • Compellingly, the private arbitration and family law model allows selection of an arbitrator who does not have the many time pressures of a sitting Family Court judge.
  • Clearly – time and money can be saved. For the complex family law case, hiring a private arbitrator can save the parties substantial money. Even though you are paying the arbitrator, the speed and focus of arbitration shortens the duration of the litigation. Naturally, shortening the litigation means mass and legal fees. Similarly, because the arbitrator focuses exclusively on your case i.e. one case at a time, the litigation can move much more quickly.

Disadvantages of private Arbitration Family Law and divorce

Can you appeal the arbitrator’s opinion? Appeals of arbitrator opinions can be only brought on the most narrow grounds.

The Act states a court may vacate an arbitration award only upon proof:

(1) the award was procured by corruption, fraud, or other undue means;

(2) the court finds evident partiality by an arbitrator; corruption by an arbitrator; 


*1204 or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;

(3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;

(4) an arbitrator exceeded the arbitrator’s powers….

[N.J.S.A. 2A:23B-23.][2]

Minkowitz v. Israeli – citation from this important family law and divorce arbitration case.

Of course, Arbitration costs money up front.

Family law judges do not “charge” you to preside over a case. You, the litigants, pay the private arbitrator. Hence, the “value” of the case submitted to private arbitration in family law must be significant.

What do I do with my opinion or order coming out of private arbitration family law?

The opinion is binding. The private arbitrator’s opinion becomes an order of the court. Optimally, you will file papers with the court. But, know that family court judges are thrilled when an important case is resolved through private arbitration. The case is resolved.

The matter is off the docket. Precious time can be devoted to other cases

Again, not every case is a candidate for private arbitration.

To the contrary, the case must have a lot at stake in terms of child issues and or financial issues. Furthermore, arbitration is the cousin of mediation. Virtually all family law cases are submitted to some form of mediation.

Can a family law case be submitted to mediation and arbitration?

Yes. However, very strict language must be built into the arbitration agreement.

Critically, the parties must agree, in advance, to permit the arbitrator to serve in the dual roles of arbitrator and mediator.

Oftentimes, the process is to hire a neutral professional. Then, attempt to mediate issues. Certain issues will be mediated and the dispute narrowed. Once narrowed, the neutral professional switches hats and becomes your binding arbitrator. In that capacity, the arbitrator acts as your “private” judge and renders a binding decision. The dual appointment is permitted under the law. However, failing to properly appoint the arbitrator can result in a court reversing the arbitrator and the entire arbitration process.

Suzette Parmley – NJ Law Journal – reports that more families are choosing arbitration to resolve divorce and family law matters.

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Roman Fox on Unsplash