I am stealing one of David Letterman’s acts to tell you why you might want to arbitrate your family law case. North Carolina is behind the rest of the country in many areas of the law but not in the area of family law arbitration. In fact, we were the first state to enact the Family Law Arbitration Act (FLAA), G.S. §§ 50-41 et seq., largely due to the efforts of Raleigh attorney, Lynn Burleson, and Wake Forest University Law Professor George Walker. Other states have subsequently adopted our statutes.
What is arbitration? Arbitration is a proceeding where a private judge is hired by the parties to act as the judge. It is done solely by contract; the Court cannot order parties to arbitrate. The parties and their lawyers decide the rules of the proceeding, such as the number of arbitrators to hear the case, whether the Rules of Evidence and Civil Procedure apply, the issues to be determined, and whether an appeal is available. The arbitration hearing takes place in one of the lawyer’s offices and is a private process. The arbitrator is usually a family law specialist or an arbitrator certified by the American Academy of Matrimonial Lawyers. The arbitrator signs a contract which binds him or her to make a decision within 30 days of the hearing and informs him or her as to the form of the award desired. The award is a private ruling that can be made an order of the Court if the parties want it to be enforceable by contempt.
- Your case will be decided by a lawyer who specializes in family law. Although we have many competent judges, the vast majority of them have never practiced family law. You are more likely to receive a well-reasoned determination based on the law if you hire an arbitrator.
- Your case will be heard when it is scheduled. Many of you have experienced numerous delays in getting your day in Court. Arbitration is scheduled by the arbitrator at a date and time that is convenient to everyone. Several years ago, I arbitrated a case where my client was a Greensboro medical doctor whose former wife had remarried and moved to California. The wife did not want to pay to fly to North Carolina only to be told by the Court that her case could not be reached, and my client did not want to cancel patients only to find out that the case was continued. The arbitration took place when scheduled.
- Your case will be decided quickly. Our district court judges are overburdened and do not have support staff to assist in preparing orders. Frequently, it takes months to receive a decision from the trial judge. The arbitrator has to make his or her determination within 30 days.
- Arbitration can usually be scheduled quickly. For decisions that are time-sensitive, arbitration is a handy proceeding. As an example, I have served as an arbitrator to determine the issue of where a kindergartner will go to school on several occasions. In each instance, the parties determined they could not agree on where the child would go to school in the middle of the summer. There is no way that the case could be heard in court by the time school commenced. By arbitrating the issue, the children were enrolled in school in a timely manner.
- Arbitration can expedite the settlement of your case. Arbitrators are empowered by the FLAA to hold pre-arbitration conferences, choose expert witnesses, issue subpoenas, enter interim distributions of marital property, and set deadlines for the completion of discovery and the submission of equitable distribution inventory affidavits. If an arbitrator is hired early in the case, he or she can help move the case along. For those who have Family Court, litigants must wait for the assigned judge to be scheduled to hold civil court for interim and temporary hearings and pretrial conferences. For those of us with no Family Court, lawyers frequently have a particular judge in mind to hear the case. In Guilford County we have to wait three months for that judge to rotate back into civil court. The arbitrator can simply schedule a telephone conference to address matters of immediate concern or schedule a hearing quickly if evidence must be taken.
- The parties and the arbitrator may agree to “hold Court” longer than the typical court day. For example, in the case where my client was a medical doctor with a busy practice, we agreed to start the arbitration at 8:00 a.m., took a 15-minute break in the morning and afternoon and 30 minutes for lunch, and stopped at 6:00 p.m. each day. The arbitration took three full days, so we spent 27 hours litigating this matter over a 3-day period. We had two experts testify with Power Point presentations, who knew the case would heard and when they needed to appear. To get 27 hours of a judge’s time in district court would take weeks, if not months. I have also been told of cases where the parties arbitrated on a Saturday due to scheduling conflicts.
- Arbitration could likely be less expensive than litigation. Although the parties typically divide equally the arbitrator’s fees in addition to having to pay their attorneys, the fact that the case can be heard quickly and when it is scheduled usually results in less litigation expense. In most instances, your case will not be heard the first time it is scheduled in court. As a result, the attorneys and expert witnesses have to prepare the case for trial repeatedly, which increases the cost. In addition, there is value to having your case concluded in a reasonable time, which may also relieve at least part of the stress of the divorce and allow parties to move on with their lives.
- The arbitrator can hear more than one issue during the hearing. Our judges will usually determine custody and child support at one hearing, equitable distribution at another, and finally alimony at a third trial. The parties can agree that the arbitrator can hear as many issues as needed, all at the same time, which again saves them money and time.
- The arbitration award is usually non-appealable. Agreeing to no appeal at the beginning of the hearing avoids the additional expense and delay involved in an appeal. The lawyers choose an arbitrator they trust to follow the law and write a well-reasoned award so there is no reason to have an appeal available.
- The arbitration is a private process. The only people in the conference where the arbitration is being held are the parties, their attorneys, and the witnesses. In some cases, confidential information is included in business and professional practice valuation reports or a party may have done some things he or she does not want made public. The courtroom is an open forum and the public and attorneys are frequently in the courtroom waiting for their cases to be heard.
For all the above reasons, I recommend that you talk to your attorney about the possibility of arbitration. It is a relatively new procedure in North Carolina, but one whose popularity is growing.