Arbitrate. Don’t Litigate. How to Keep the Judge Out of the Picture.

Posted October 6th, 2016.

Categories: Child Custody, Custody Tips, Family Law.


We’ve all heard about mediation, but what about arbitration? In mediation, the parents try to settle their custody dispute in the presence of a third party who is usually a lawyer or other specialist serving as a court-appointed mediator. The mediator literally sits on the median – in the middle – trying to nudge the parties toward a resolution. But mediation isn’t always binding, and it doesn’t work if one of the parties simply refuses to participate in good faith.

Arbitration, on the other hand, works like an expedited court proceeding in which the arbitrator functions more like a judge. In an arbitration, both sides present their positions, produce their evidence and testimony and make their best arguments. Then the arbitrator decides who gets custody and/or visitation rights. Unlike a mediator, the arbitrator is a decision-maker. While mediation leads to a settlement between the parties, arbitration leads to a decision by an arbitrator.

Custody arbitration may or may not be permitted in your state, but there is a rising tide of interest in this out-of-court method. In fact, the courts in New Jersey recently recognized the right to custody arbitration in a case known as Fawzy vs. Fawzy. Even if a state has not specifically acknowledged arbitration as a method of handling such cases, a parent or lawyer could petition the court for permission to refer the matter to a private arbitrator.

Arbitration can be attractive for a number of reasons: For one thing, it’s likely to be quicker and more efficient than the court system. Secondly, arbitration can save money by minimizing legal fees and court costs. Thirdly, the rules of procedure and evidence are usually relaxed somewhat in the arbitration process.

Arbitrations can be binding or non-binding. A binding arbitration, if permitted by the court, will bind both parents to the decision of the arbitrator. In other words, the arbitrator’s decision will be final, and there may be no right of appeal. A non-binding arbitration, however, may permit the parents to appeal or to reject the arbitrator’s ruling and to return to the Family Court for a trial.

If bias, money, delay, or other reasons make the court system look like a lost cause, then consider arbitration as an alternative.

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