In litigation, the parties are before a court of law and equity. Due to COVID backlogged cases, the number of new filings, and increasing costs of litigation – a day in court, even one for a short Motion or Order to Show Cause can be frustrating for the parties. Parties are required to appear by online access, and in some cases, appear in person, on time but must often sit/wait all morning and sometimes into the afternoon until their case is called. Family law trials can also be delayed for months, and delayed again, due to unavailable courtrooms and priority of other cases, such as child custody or domestic violence restraining orders.
Alternative Dispute Resolution/Consensual Dispute Resolutions (ADR/CDR) includes options that the courts are unable to provide. Judges encourage mediation and collaborative law solutions, where the parties resolve their problems by reaching their own agreement, without court intervention. Mediation is a process where one or more neutral mediator(s) facilitate(s) or help(s) the parties reach an agreement any time before a final decision from the court is made.
Collaborative law involves two parties, their Collaborative attorneys, and an interdisciplinary team who agree not to litigate the case. If the parties decide to litigate, the collaborative process stops, then the Collaborative attorneys and team withdraw, and the parties start over in court. This keeps the process in a “container” and encourages settlement without any hidden agenda.
For individuals who are insistent upon having their case heard before a trier of fact and law, Alternative Dispute Resolution/Consensual Dispute Resolution exists. These parties and their attorneys can elect to proceed to Arbitration, where a private arbitrator makes the decision.
Arbitration is a form of Consensual Dispute Resolution, which is a best fit for individuals who are insistent upon having their case heard before a trier of fact and law. These parties and their attorneys may elect to proceed to Arbitration or by Private Judging. An Arbitrator or Private Judge listens to evidence presented by the parties, considers the law, and makes an award.
During arbitration, all parties and counsel agree in writing that a neutral arbitrator will hear their case and make a decision in accordance with a written contract and applicable rules of law and procedure. Under prevailing law, courts will usually not review binding arbitration awards. The arbitrator listens to evidence presented by both parties and makes an award. This is usually handled in a faster and more private manner than the delays caused by the lack of open courts, although each party usually shares the cost of the arbitrator for his/her time.
Parties who use arbitration to resolve matters save time and expense by not requiring attorneys to repeatedly return to Court for each and every minor disagreement. For parties who have high conflict situations, these processes offer assistance quickly and at a lower cost.
In family law, arbitration is handled by a network of private judges - Retired Judges and Certified Family Law Specialists. Upon the agreement of the parties, the court can appoint a Special Master/private judge to receive information and evidence and make a reasoned decision or proposal, which can then be confirmed by the Court and made an order.
Parenting Plan Coordinator(s) is usually a Certified Family Law Specialist, mental health professional, or Retired Judge whose job consists of reviewing information and presenting findings back to a court who makes the final determination.
Private Judges, likewise, are Certified Family Law Specialists and Retired Judges who can be selected from a panel by joint stipulation and agreement between the parties and their attorneys. The hearings are then held on dates certain in the Private Judge’s offices, without the threat of continuances due to court congestion. The case, therefore, proceeds to a final decision much faster and has the individual attention of the Private Judge.