What is Arbitration?
Arbitration is a form of private, binding adjudication that shares some similarities with the court process while also differing significantly in various aspects. It is a method through which parties engaged in a dispute submit their disagreements to a mutually agreed-upon, knowledgeable, and independent third party—the arbitrator—who makes a binding decision. While certain disputes inherently require resolution through litigation, the majority can be effectively resolved through arbitration, offering significant advantages to the parties.
This method is particularly advantageous for parties who wish to select their adjudicator and prioritize confidentiality. In many instances, arbitration proves to be more cost-effective than traditional court litigation. Arbitrators possess the legal authority, granted by both law and contractual agreement, to render binding decisions on matters submitted to them for arbitration.
It is important to note that an arbitrator is only authorized to adjudicate issues specified within the parties’ Arbitration Agreement. To ensure the enforceability of an Arbitration Award, it is essential for all parties to obtain independent legal advice prior to signing the Arbitration Agreement. Furthermore, Arbitration Awards may be subject to appeal in accordance with the stipulations outlined within the Arbitration Agreement.
A key distinguishing feature of family arbitration is the arbitrator’s obligation to identify and address power imbalances, particularly those arising from domestic violence. The arbitrator must ensure that these imbalances are recognized, assessed, and effectively managed throughout the private adjudication process. Legally, family arbitrators have a responsibility to determine the appropriateness of cases for private arbitration.
What is Mediation-Arbitration?
As the term implies, this process is a hybrid approach in which one individual is appointed as both mediator and arbitrator. The mediator-arbitrator first facilitates a mediation session aimed at resolving the issues at hand. Should the mediation prove unsuccessful, the parties then engage in a separate and distinct arbitration process. The objective of this phase is not to achieve a settlement; rather, it is to afford each party a fair opportunity to present their case to the arbitrator and respond to the opposing party’s arguments during an impartial hearing. Upon conclusion of the hearing, the mediator-arbitrator will issue an Arbitration Award.
In family mediation-arbitration, to ascertain that the case is suitable for this dual process, a screening for power imbalances, including instances of family violence, is conducted. In family mediation-arbitration, it is the responsibility of the professional to perform this screening prior to the signing of the mediation-arbitration agreement, similar to the obligations of a family mediator.