A recent decision of our Appeals Court, Gravlin v. Gravlin, is good news for those facing divorce.
For collaborative divorce attorneys and divorce mediators, the decision confirms that arbitration is the viable alternative to court litigation for resolving a single issue or even taking the place of a full court trial.
In Gravlin, the Appeals Court acknowledged:
“… arbitration has long been recognized as a valid means of resolving disputes between divorcing parties.”This blog's primary author, attorney/mediator Justin Kelsey, has often praised the value of using alternatives to divorce litigation; with Gravlin, the Appeals Court has stamped an imprimatur of sorts on divorce arbitration.
While arbitration is available to replace a public court trial, I encourage the use of collaborative divorce or mediation to “work out” divorce issues, as discussed in previous posts on this blog. However, if collaboration or mediation reaches a deadlock (a stalemate on one or two remaining issues) then it is time to for divorce arbitration.
When parties follow a simple process, the Appeals Court promises a “… strict standard of review [that] is high[ly] deferential…” to an arbitration award. “Typically, no inquiry is made into whether the arbitrator made erroneous findings of fact or conclusions of law.” Unlike public trials, the arbitrator’s award is, in most cases, beyond appeal and final.
What does the simple process involve? The process requires that:
- Respective counsel advise each party.
- Parties freely enter their Agreement to Arbitrate.
- Parties knowingly waive a court trial and submit to arbitration.
If there is any trial court review of an arbitration award, the review will be limited to determining:
- The arbitrator’s award was confined to what he/she was asked to decide;
- The award did not give relief that is prohibited by law;
- The award is not based on fraud, arbitrary conduct, or procedural irregularity in the hearing.
(In my experience, the selection of an experienced, knowledgeable arbitrator will result in a positive review and enforcement of the award.)For collaborative attorneys and mediators, Gravlin is another reason to recommend arbitration for settlement stalemate.
For parties facing divorce or divorce stalemate, there is an alternative to a costly, lengthy and publicly litigated trial – arbitration.
*Anthony is a divorce arbitrator, collaborative attorney and divorce mediator. His office is in Salem.
© 2016 Anthony C. Adamopoulos