The last time I wrote about different types of mediation – forms of alternative dispute resolution. I am a strong proponent of mediation, whether pre-divorce facilitative mediation or court-ordered mediation once a divorce case is pending. However, I am not a proponent of either binding arbitration or collaborative law. I will describe both and explain why I do not believe either is a good choice for the majority of people facing divorce. In the interest of fairness, I will at least identify the so-called “positives” for utilizing either arbitration or collaborative law in a divorce case.
Binding Arbitration – This is a process where the parties agree to utilize a neutral trained and experienced third party – typically a family law attorney – to hear the case and issue an award which is binding on the parties. Essentially, the arbitrator acts as a judge, but the case takes place at the arbitrator’s office and a less formal setting. Depending on the agreement of the parties, the rules of evidence might be more relaxed than a formal trial before the judge. Some parties and their lawyers may consider that beneficial.
At one time, arbitration was popular because it took a long, long time to bring a case to trial and the common theory was that arbitration could result in a final judgment must more quickly than a trial. However, it seems to me that this is no longer true, at least not in the counties where I most regularly practice (Wayne, Oakland and Macomb counties). In reality, arbitration can take a very long time to complete – over a period of months. Just as with a trial, the parties have to contend with the schedules not only of their own attorneys but of the arbitrator as well. Also, the parties do not have to pay the judge to hear the case, but do have to pay the arbitrator, so the process can become very costly.
From my point of view, arbitration has one fatal flaw, and that is the right to appeal is all but abandoned when binding arbitration is utilized. If you have a trial in front of a judge and get a result you do not like, you have a right to have any and all issues raised at trial reviewed by a higher court. However, when you arbitrate, the right to an appeal is severely limited. Generally, the only appealable issue is that the arbitrator exceeded the scope of authority granted to him/her by the arbitration agreement. This is particularly troubling because Michigan permits the arbitrator to deviate from established family law cases, rules and statutes. In other words, you have no idea what you might get. By comparison, the trial judge is required to follow the case law, statues and court rules applicable to family law when deciding a case. I simply do not take my cases to arbitration.
Collaborative Law – This is a process which, compared to mediation or arbitration, is relatively new in Michigan as a means of resolving a divorce case. Those who promote collaborative law say that it is of particular benefit to very wealthy parties and I would tend to agree. In fact, I often say that collaborative law benefits no one so much as the host of experts who get to charge fees for their services.
At its heart, collaborative law involves two parties, each represented by counsel, who engage in a negotiation process that invites various experts that might be pertinent to the case, including divorce coaches, child psychologists, as well as business and property appraisers and others. Here’s the catch, however. If the process falls apart, both parties must retain different attorneys. The attorneys who were involved in the collaborative process are not permitted to represent the parties if the case goes to court. It is said that a benefit of collaborative law if that the parties are more motivated to settle because so much money has been invested. That may be true, but I can honestly say that in the past 24 months, I have inherited cases bound for court where the parties had spent many thousands of dollars on a collaborative law process that then fell apart. It seems costly and risky to me. In my experience, mediation is a more consistently successful process.
Of course, at the end of the day, each couple has to decide which process is best suited to their needs. I hope the information I have provided will assist you if you have to make this decision.