The main difference between arbitration and litigation is that litigation requires Court involvement and arbitration does not. Litigation is a process that requires a decision be made by a Judge or a jury. In most jurisdictions, matters are determined by a Judge rather than a jury. The primary downside of litigation is the limitations that involve court deadlines and calendars. Because of the pandemic, domestic or family law cases may not be heard for months, if not years. The parties have no say as to who their Judge will be in most cases, and the parties cannot control the date of their hearing, or whether the case will proceed without delay.
Unfortunately, it is often the case that a hearing is delayed after it begins, for weeks or months, if another date is necessary. For example, if the parties agree that the trial will take four days, and the Court sets in a hearing for four days, because of events out of the parties’ control, the commencement of the hearing may be delayed until late in the day, or may not commence until the following day. There may be other matters on the Judge’s calendar for the day, such as sentencing or motions hearings. As a result, the parties’ case may not proceed for 5 hours a day, day after day, as they would have expected. If that occurs, and it often does, the parties may have to wait weeks or months for another day or two to conclude their case.
The result is that expert witnesses, and other witnesses, will have to be rescheduled, and the Judge may not have adequate notes or recollection to recall all of what was presented to the Judge during the first few days of trial.
Another limitation is that the parties do not have the ability to select the Judge who will hear their case, in most instances. Some Judges have more experience than others, and, in complex matters, the Judge’s experience and expertise may significantly affect the outcome. If the parties elect arbitration, rather than litigation, they can select their arbitrator from a list of retired Judges and experienced family law attorneys who have been trained and certified as arbitrators by the American Academy of Matrimonial Lawyers.
If the parties decide to proceed with arbitration, they cannot only choose the arbitrator, and the dates and times of the proceedings, they can also make decisions as to what evidence will be presented, and whether or not the rules of evidence will be followed.
Most importantly, arbitration is a private matter. The hearing is not public, whereas court hearings are open to the public. This is a very important factor for most of those going through a divorce.
The arbitration process is fairly quick. Once the parties choose the arbitrator and set the rules as to how and when the hearing will proceed (by way of a written contract), the matter can proceed expeditiously.
The costs of arbitration are the same as those of litigation, other than the cost of the arbitrator. However, when one compares the cost of the arbitrator, vis a vis a Judge for whom there is no cost, one must consider the delays and lack of control that is a very significant part of litigation.
ABOUT CHERYL L. HEPFER
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Cheryl Hepfer is a highly-regarded attorney who has practiced family law for more than 40 years. She has been rated by her peers and is listed in Best Lawyers in America and as a top lawyer in the Washingtonian, Bethesda Magazine, and Super Lawyers. She is past president of both the American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers.
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