Bar Article – The Use Of Arbitration And Private Judging In Domestic Relations Cases

Of all of the family law articles in this magazine all focus on different areas of alternative dispute resolution in the area of family law. This particular article will focus on the use of arbitration and/or private use of arbitration and/or private judging in a domestic relations matter. In Arbitration Act, Chapter 2711 of the Ohio Revised Code provides for parties to arbitrate civil matters. In a domestic relations matter, certain aspects of domestic relations cases can be heard by an arbitrator and/or private judge. Those matters include things such as duration of marriage, valuation of real, intangible and tangible personal property, classification of separate and marital property, distribution of property, spousal support, child support, and other matters not relating to the allocation of parental rights and responsibilities of the minor child(ren).

In Ohio you can become a certified arbitrator in domestic relations. Training is ongoing and once the training is completed you can be certified to serve as an arbitrator in this area of law. There are not a lot of people trained or certified as arbitrators, probably less than ten (10) in the area; however, the list continues to grow as more and more practitioners are becoming more immersed in Alternative Dispute Resolution.

Arbitration can be done where the parties can try and hire a certified domestic relations arbitrator or a panel of arbitrators if they believe that is the method to best procure the fairest result.

Just as in any other arbitration case, the decision of the arbitrator is then submitted to the court for confirmation, modification or vacation under certain circumstances. Specific reasons for vacating an award seeking to modify an award are found under Ohio Revised Code Section 2111.10 and 2111.11. If the parties are seeking to utilize an arbitrator and/or private judge, then the appropriate paperwork must be filed in the court to assign the matter to an arbitrator or private judge. It is highly, highly recommended that the individual parties also sign the agreement because arbitration can only be done at the request of all parties in a domestic relations case.

The parties are not estopped from appealing the decision of the arbitrator to the trial court and thereafter they may appeal a trial court’s decision to correct, modify and/or vacate an award. The use of arbitration has some significant advantages that must be weighed with the disadvantages that it brings to any court case. The most obvious advantage to parties and counsel in utilizing arbitration is that of control. The parties and counsel will set the schedule by which certain aspects of discovery will be completed for arbitration. The parties would select the arbitrator, the parties would be able to put time limits on the arbitrator in terms of rendering a decision. Anybody who does any form of litigation has waited months and months on end for a decision to come that could have been rendered within 10 – 15 minutes. Arbitration can give the parties the power to do that. The parties can agree with the arbitrator that they will have so long to render a decision in writing after the hearing date. The control aspect can also come into scheduling in a hearing. Depending on the nature of the dispute, the parties can agree to do the arbitration around the litigant’s schedules, such as doing them on evenings, later afternoons, weekends or at other times that the court might generally be closed.

Privacy is also a major concern. Depending on how the parties structure their arbitration agreement, it is one way to have the matter done privately between the parties and without having scrutiny of the court or the public. It can also be a cost saving matter. This would depend on the nature of the dispute and the issues involved. If the parties agree to a very stripped down method of arbitration for a very small matter, it may simply be having each of the parties schedule a half hour appointment with the arbitrator. Each party can then go in a state their case and have the arbitrator render a decision. In this way the parties would not be having to pay their counsel an hourly rate while at the same time doing arbitration over something small. This last technique would probably be most helpful when the parties have resolved substantially all the issues of controversy between them, but have small nagging issues of less than $5,000.00 which tug more at the parties’ heart strings than at their wallets. In that respect, having the parties do a modified, simple arbitration before a trained arbitrator would resolve the issue, give each party their “day in court” and at the same time preserve the settlement on the main issues that will have long term effect on the parties.
The cons of arbitration may be that you do not have the official discovery that you need if you believe that a party is concealing assets or being corrupt. Obviously there are provisions provided in Ohio Revised Code Section 2127.10 and 2127.11 if at a later time that is found out. However, it may hamper a party in terms of doing some if its due diligence.

The cost can be extreme depending on the nature and amount of issues that are before the parties. You are paying a judge or an attorney their hourly rate to sit here and make a decision on the case, when you have a court which technically has a much lower cost to access. Not only are you paying for the arbitrator’s time to listen to the case, but if you are going to do arbitration you will want to make sure that they are educated and that they have certain amounts of material made available to them prior to mediation to review and be competent in terms of listening to the evidence and also compensation for reviewing the evidence and making a determination. This can add thousands and thousands of dollars pending on the nature of the dispute.
Given the fact that the parties are trying to get three (3) different arbitrators, the cost may be cost prohibitive on an ordinary matter. However, given the nature of the case, it may be the parties’ desire to go ahead and pay the extra expenses to utilize the expertise of three (3) different arbitrators.

In addition to those costs, you can have the costs of creating a record, as such a court reporter. You do need to have the process fairly organized so that there is a record created in case you need to object or modify; and therefore, that can take extra cost and time. The perception of bias on the part of parties. If someone is going to be a certified domestic relations arbitrator the chances are that they have had significant experiences in this domestic relations shield and very well will have had relationships with one or both of the litigants. This can hurt the perception that the parties have and can make it difficult.

Overall at the present time, arbitration has not been tested enough to see it as a ordinary process that can replace what the court currently does. However, it does seem to be very, very useful in two (2) situations. 1. We have parties that have a very small issue for which they cannot resolve or reach a settlement. If that issue can be small enough to make it cost advantageous for the parties to be able to spend the money and hiring somebody, then it seems to be a very good alternative. In doing so, it very well will allow the parties that opportunity to have their day in court. The other alternative where the parties have enough funds to deal with the issues where discovery is not going to be difficult and they seek privacy. If privacy is that ultimate goal, then arbitration can be that method and manner to go ahead and provide them the best alternative. However, it would seem that if it is merely a stepping stone for permanent litigation and all you are doing is creating another stepping stone of litigation, if the parties are so fractious and disagreeable then arbitration doesn’t seem to resolve itself because it will just lend itself to litigation involving more lawyers later on down the road.

However, this is just a starting point and it is up to members of the legal community to try and come up with different alternatives to help people through family law matters.

The most common aspect of private judging is to hire a private judge to hear an uncontested case. The undersigned has done that; however, not in this area but in Franklin County. In some of those instances the costs are relatively cheap. The additional cost to the parties are relatively cheap, $300.00 or less. While this has not been introduced in this area yet, it would be anticipated that by the end of 2008 that there will be several lawyers that will be doing some of their uncontested work not going to a court. That will require a visiting judge to register with Cuyahoga County to hear cases and then the parties to have the appropriate paperwork filed and sent to refer the case to them. Once it is done they can do the uncontested hearing on Friday afternoons, evenings or even on Saturdays. This would seem to be a very big advantage for people who cannot take time from work; people who don’t want to pay for their lawyer to wait around for a five (5) minute hearing; and to give people a sense of dignity, privacy and pride. If any domestic relations practitioner is interested in the possibility of hiring a private judge to do their uncontested cases they can feel free to contact or email the undersigned.