Arbitration is not often used as a tool to resolve domestic cases in Oklahoma. It is useful, though, when applied to the right case. Consider the following advantages and disadvantages of matrimonial arbitration.
Privacy – Arbitration usually takes place in a private office. No one is present unless all parties agree. Parties keep control over what makes the public record. In contrast, Courtrooms are very public places to disclose the private facts that make up most family law cases.
Speedy and efficient resolution of your case – In litigation, the court sets the schedule for what happens when. An arbitrator will have fewer scheduling conflicts. You will not be on a docket with several other cases. Expert witnesses also appreciate not having to sit at the courthouse waiting to be called. The arbitration can even be brought to them!
A cost-effective process – Arbitration should cost less than litigation in court. Court rules are cumbersome because they are designed to fit all needs in all cases. Arbitration can streamline the process. Examples include stipulations, relaxed rules of evidence and procedure, use of reports or affidavits instead of live testimony and careful use (or non-use) of court reporters. The cost of an arbitrator should be more-than-covered through reduced litigation costs.
Specialized knowledge – Sometimes a couple will have thorny issues on the characterization, valuation, or distribution of property. Specialized knowledge of family issues, such as business or personal finance, or family systems, can be useful in deciding family law cases. Rather than taking an assigned judge who may or may not have such specialized knowledge, the parties can contract to give someone with such knowledge decision-making authority.
Custody concerns – there is no case-law in Oklahoma as to whether a mediator can make a binding ruling on a child custody matter. Cases and court rules in other states are not consistent. While custody matters may be subject to judicial review and approval, the parties can present their custody case to an arbitrator. A good record in arbitration has a better chance of passing judicial review as being in the best interests of minor children.
Due process and fraud concerns – When considering the rules for arbitration, one must consider the level of trust between the parties to make full disclosure of relevant facts. Lack of trust between the parties may require use of full disclosure affidavits, or keeping in effect the Oklahoma Discovery Code, which can be enforced in arbitration.
Arbitration has long been used in labor law and securities law. Its application to divorce cases is due. Oklahoma has adopted the Revised Uniform Arbitration Act. The American Academy of Matrimonial Lawyers has adopted a Model Family Law Arbitration Act and Rules. A carefully drafted Agreement to Arbitrate, and choice of the right arbitrator, can lead to a private, timely, cost-effective and thorough resolution to your family law problems
David Tracy of the Tulsa Family Law Center is certified by the American Academy of Matrimonial Lawyers as an arbitrator.