Divorcing During the Pandemic: Arbitration

March 8, 2021

The Maryland court system still remains in Phase II of the Maryland Judiciary’s reopening plan. The court system is scheduled to return to Phase IV operations on March 15, 2021, and Phase IV operations on April 26, 2021. Currently, no in-person multi-day trials are being held, and most jurisdictions are not allowing remote multi-day trials. Most contested divorces require more than one day in trial, so they cannot move forward at this time. Even when the courts return to Phases IV and V, there will be a tremendous backlog of contested family law cases. Any matters not yet set for trial will likely be scheduled near the end of 2021, if not in 2022.

In earlier blogs, we discussed the options of using Marital Settlement Agreements or mediation to divorce during the pandemic. Both of which require a certain amount of cooperation and shared decision-making with your spouse. If you are in a contested divorce and cannot decide on marital issues with your spouse, we encourage you to consider arbitration.

Arbitration

Arbitration is another form of alternative dispute resolution that can help spouses resolve their marital issues and finalize their divorce outside of the courtroom. In arbitration, both spouses will hire a family law attorney to represent them through the arbitration process. The arbitrator, typically a retired judge, serves as a neutral third party to hear the case and, ultimately, makes the final decisions for each martial issue. In simple terms, arbitration is like a small, private, and less formal version of a trial.

Benefits of Arbitration

Here are some of the benefits of choosing arbitration for your divorce:

Third-party decision-maker. Arbitration permits an experienced attorney or retired judge—of your choosing— to make the divorce decisions on your behalf. In a trial, you do not select your judge. He or she is assigned to your case, often times the day before your trial depending on your jurisdiction. In a Marital Settlement Agreement or mediation, there is a high degree of discussion and compromise with the opposing party in order to reach an agreement.

Confidential. Unlike going to court for a trial, arbitration and the decisions made during arbitration can remain confidential.
More affordable. In most cases, arbitration can be a more affordable option in comparison to going to trial. The reason being, trials are often longer and more involved than arbitration.
Faster and more efficient. Arbitration is often much faster and more efficient than going to trial, especially with the ability to schedule the meeting dates according to each of the participating parties’ schedules.
Less formal. Although similar to a trial, the arbitration process is far less formal than going to court. The Rules of Evidence, for example, are still used, but not as strictly applied.

Arbitration v. Mediation

Arbitration and mediation are sometimes confused because they are both forms of alternative dispute resolution that can be used to finalize divorce outside of the courtroom. However, they are quite different. As discussed in our last blog post, in mediation a certified mediator, typically another attorney or a retired judge, facilitates the negotiation between the two spouses regarding all important marital issues, like marital property, child custody, child support, and alimony. The goal of mediation is to use the mediator as a middle ground between the two spouses to come to agreements that are in the best interest of the family. The mediator does not make any decisions for the spouses. Instead, the mediator helps the parties reach decisions for themselves. In contrast, the arbitrator of an arbitration ultimately makes the final decision for each marital issue. An arbitration decision is binding upon the parties, so before agreeing to arbitrate a matter, it is important to discuss the advantages and disadvantages with your attorney.

Is Arbitration Right for You?

If you are in a contested divorce and cannot come to shared decisions with your spouse, arbitration may be your only option to divorce during the pandemic. Although we know when the courts will open and multi-day trials will resume, it is still uncertain as to when you will be scheduled to have the opportunity to appear before a judge.

If you have questions about divorce and mediation, please contact Turnbull, Nicholson & Sanders, P.A. at (410) 339-4100 or info@tnsfamilylaw.com. Our team of family law attorneys is here to help guide you.