Binding Arbitration: What is it?

One of the requirements of getting divorced in, Colorado, is Mediation. When there are ‘issues’ surrounding a divorce and the Parties’ see that their issues will not be remedied in Mediation, they will find themselves in front of a Judge for a Contested Final Orders Hearing,

Mediation/Arbitration is the best alternative to a Contested Final Orders Hearing! It will save the Parties a great deal of time and money and diminish the stresses surrounding a Contested Hearing. It gives the Parties quick access to a judge/arbiter and allows for dialogue whereas a Court Hearing does not.

The average person has, most likely, never been in court, never been in a courtroom setting, has never had to sit in the witness box and answer questions from lawyers and has never had to answer questions from a judge. These experiences, as shown in research, is extremely stressful on parents/litigants or parties to a divorce or custody case.

Arbitration is a process that takes the divorce case or a child-custody case out of the hands of the judge and places it in the hands of a qualified arbiter. Many times, a qualified Arbiter is someone who has extensive experience with the family-law arena and related cases. They could be retired Judges or Lawyers who have many years conducting mediations and resolving challenging disputes, including financial issues as well as child/children related issues.

So, rather than a the stressful environment of being in a courtroom or having to go to one hearing after another hearing or waiting for extremely long periods of time to have your case finalized, lawyers and their clients can appear in front of an Arbiter in a stress-free environment such as a conference room or in a lawyer’s office.

This is how it works: The parties must agree to go to Arbitration. Once the Arbiter is appointed, the Arbitration will be scheduled. The Arbiter will listen to what both parties want and will listen to what their respective lawyers are arguing on their behalf including evidence, witnesses, experts, such as a forensic accountant, and documents to make arguments for their positions. After listening to and dialoguing with all parties involved, the Arbiter has the authority to issue a ruling in the form of a written decision that will make findings of fact and decisions based on those facts. The end result is an Arbiter’s award rather than an Order from a Judge, which is binding and enforceable. In Colorado, even when the parties have agreed to arbitrate their family disputes, either party can ask the Court to hold a new Hearing, called a De Novo Hearing, regarding child-related issues within 30 days after an Arbitration Award is issued.

In my practice, I found that Arbitration is an extremely worthwhile process as it saves time and money for all parties involved . In addition, it is often scheduled long before the Court has available time for a Hearing, which sometimes ends up being months in the future.

Many divorcing and separating couples want to keep their dispute out of court to the fullest extent possible. Because Arbitration is more private and confidential than Court, parties often feel more comfortable using the Arbitration process to settle their marital disputes rather than airing them in open court. Arbitration differs from Mediation in the degree to which the parties control the outcome. In Mediation, the parties are in total control of the outcome and fashion their own agreement. In Arbitration, it is the Arbitrator’s and not the parties who ultimately decides the outcome. While Arbitration is a more formal process than Mediation, both Arbitration and Mediation are less formal than Court.

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