By Anthony C. Adamopoulos (© 2015)
So the city-attorney and the country-attorney were talking when the country-attorney raised concerns about her upcoming divorce trial:
Country-attorney: – I hope we get the scheduled judge, I hope it goes off as scheduled, etc., etc.
City-attorney: -Who does court trials anymore?
Country-attorney: What do you mean? What do you do?
City-attorney: It is all arbitration now.
Country-attorney: – Why?
City-attorney: – It is all about control? The other side and I may disagree on many issues but we agree that we want to have the control over who decides the issues, when and where the hearing will be and when the decision will be made.
Here is a lay person’s explanation as to why arbitration may well give the parties, and their attorneys, more control of resolution of their divorce issues.
Divorce Resolution by court trial.
Understanding certain characteristics of a court trial is important. (The following is based on the Massachusetts divorce court trial process. There are exceptions, but generally, the following will apply.)
The trial judge.
The trial judge is randomly assigned to a case when it is filed (probably about a year or two before any trial is scheduled). However, the judge scheduled to hear a trial may not do so for a variety of reasons including: illness, presiding over another trial, retirement or transfer.
The judge assigned to a case may have no judicial experience with the primary issue in the trial. For example, a corporate valuation issue or what is in the best of interest of a severely handicapped child.
The trial date.
A trial date is the expected date that the trial will start; and perhaps finish. Whether it will start is dependent on several factors. For example, “over booking”; this occurs because many cases scheduled for trial settle just prior to the trial. But, if all “assigned for trial” parties actually come to court for a trial then some cases will not begin.
A public trial.
The trial will be open to the public, including the press.
The Rules of Evidence.
Everything that is offered to the judge for consideration is offered under a set of rules called the Rules of Evidence. The Rules regulate how and what the judge sees and hears. For example, the Rules keep out of consideration photocopies instead of originals and affidavits instead of in person testimony. The Rules of Evidence result in costs that do not have to be incurred in arbitration.
The right to appeal.
After every divorce trial, either party has the right to appeal the trial judge’s decision. An appealing party may not win an appeal but the right to try is a part of every trial.
Divorce Resolution by arbitration.
The parties hand pick their arbitrator (or a panel of three or more arbitrators) based on ability, expertise and availability. For example, the parties may select an arbitrator with experience in corporate valuation or the needs of a severely handicapped child.
The hearing date.
The parties select the hearing date.
The arbitration hearing is private and confidential.
Everything offered may be considered.
Generally, any party may offer for consideration evidence in any form.
With very specific exceptions to protect the integrity of the arbitration process, an arbitration decision (called an award) is final and binding.
Why have a court trial when arbitration…
provides privacy, expertise, efficiency and finality – sooner rather than later.