All of us have been in these kinds of situations: a client comes to you with an issue that is causing high conflict with a former spouse, but it seems too minor to litigate. Or perhaps you are in mediation and all of the major issues are agreed upon, but you just can’t get a decision on one issue, like the morals clause or division of personal property. Perhaps your client feels that the judge assigned to the case is biased or your experience indicates the judge may likely rule against your client on a particular issue. Although it may seem like it’s time to just throw in the towel and litigate, it is important to consider a different way to resolve cases -- arbitration.
Arbitration is a process whereby -- instead of an agreement being facilitated by a mediator -- a neutral arbitrator listens to the evidence and arguments from both sides and the parties can walk away with a final and binding decision. Arbitrators have long since had the authority to make decisions regarding division of property in Georgia divorce cases. However, effective January 1, 2008, child custody issues can now be handled in arbitration pursuant to O.C.G.A. § 19-9-1.1. If parties agree to submit their issues to binding arbitration, any decision reached by the arbitrator will be a final decision which binds the parties. With the agreement of the parties, arbitration can be used to resolve issues including attorney’s fees, holiday visitation, morals clause, division of personal property, and all other matters incident to divorce.
Although arbitration may seem like a very unusual way to resolve issues for lawyers who are accustomed to preparing their cases and arguing them to judges or juries, it can be a very effective for many reasons. Just like mediation, arbitration can usually be scheduled far more quickly than a court hearing, which is helpful in time-sensitive matters such as holiday visitation disputes. Attorneys also get to choose the arbitrators who make the decisions, while judges are randomly assigned to cases. During the arbitration process, attorneys and parties can present evidence and law for consideration by the arbitrator and even call witnesses and submit affidavits. In cases where children must choose between living with one parent over the other, the relative informality of the arbitration setting can be far less traumatic for them than that of a courtroom. The cost of preparing for arbitration is also typically far lower than the cost of preparing for trial, which would include costs associated with appearances on a trial calendar, research, subpoenas, and witness preparation time. Although arbitrators are paid by the parties for their time associated with the case, the long-term costs, both financial and emotional, are far cheaper.
One other way parties can use arbitration is to agree that any arbitrator decision or award will be non-binding. Although this may seem like a wasteful exercise, a mini-trial with an arbitrator may point out case weaknesses and even prompt settlement between the parties, who can then avoid a trial altogether.
In order to handle Georgia court-connected cases, arbitrators do not have to be attorneys, but should be adequately trained in the process so that the proper procedures are followed and the arbitration decision reached cannot be attacked by unhappy parties. For more information on registration requirements for arbitration and to search for registered arbitrators in Georgia, refer to http://www.godr.org/.