The Applicability of Divorce Arbitration as an Alternative to Matrimonial Disputes

Contributor: Toheeb Ageagbo AICMC Esq.

INTRODUCTION

Going by the pronouncement of Valantine J. in the case of Sheets v. Sheets[1], it was held as follows:

There seems to be no clear and valid reason why the arbitration process should not be made available in the area of custody and the incidents thereto, i. e. the choice of schools, summer camps, medical and surgical expenses, trips and vacations. In fact, the American Arbitration Association is now equipped to arbitrate marital disputes arising out of separation agreements.

This is a clear jurisprudential pavement upon which the concept of Divorce Arbitration, has been able to navigate its way into the quotidian practice of alternative mechanisms of resolving matrimonial causes/disputes.

ARBITRATION

Arbitration, a form of Alternative Dispute Resolution (ADR), is a way to resolve disputes outside the Courts. The dispute will be decided by one or more persons (the arbitrators, arbiters or arbitral tribunal), which renders the ‘Arbitration Award’. An arbitration award is legally binding on both sides and enforceable in the Courts.[2]

Arbitration can be either voluntary or mandatory, (although mandatory arbitration can only come from a statute, or a contract that one party imposes on the other, in which the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur), and can be either binding or non-binding. Non-binding arbitration is similar to mediation in that a decision cannot be imposed on the parties. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbiter remains removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. By one definition, arbitration is binding and non-binding. Arbitration is therefore, technically, not arbitration.

DIVORCE ARBITRATION

Divorce arbitration can be said to be a form of divorce proceeding where parties present their arguments before the arbitrator(s), who resolves their grievances through a final and binding award. Apart from the luxury of privacy provided by opting for arbitration, the hearings and procedures are generally more flexible and informal compared to litigation. An example is the arrangement of a venue which is convenient to all the disputants, rather than a fixed venue. There is also greater party participation, allowing for the parties to feel involved in the decision of their fate.

Divorce arbitration can be described as a mini-trial or an informal litigation, wherein divorcing couples select a neutral third party, called an arbitrator, with Family Law experience to hear their case and gives a final decision (award) having heard from both sides. The arbitrator acts like a judge because he gives a final decision at the end of the process. Unlike a judge, he has a great deal of leniency because the couples can have a say in what the rulings will be.

The decision of a divorce arbitrator may be either binding or non-binding, depending on the choice of the parties. If the couples elect that the decision be binding, that decision will then be made into a formal judgment. If the parties elect that the decision be non-binding or advisory, the parties can either accept or reject the decision of the arbitrator. If they accept the decision, an agreement to that effect will be entered into and a decision will be made into a formal judgment. If either party or both parties later reject the decision on grounds that the arbitrator is partial and that the decision is made wrongly, an appeal can be filed in the court of law.

However, if the end result is the same as the first decision or is more favourable to the other spouse, the spouse who appeals may be ordered to pay the other costs. In the case of Mason v Mason,[3] the Appellant was ordered to pay certain fees, including attorney’s fees as part of the Mediated Settlement Agreement (MSA), and the parties returned to arbitration when a dispute arose over compliance with these orders. Except in the situation mentioned above, an arbitrator’s decision (award) cannot be appealed against. This makes the choice of an arbitrator very crucial. Generally, both spouses are allowed to settle on who the arbitrator will be or set up the process of how the arbitrator will be selected if they cannot agree on a choice.

Arbitrators, like mediators, are often called upon when the divorce proceeding in Court derails because the parties cannot agree on one or more issues, such as who should pay children’s maintenance or who should be responsible for their custody. It should be noted that arbitrators may be matrimonial lawyers or former judges, but in any case, they should be familiar with the family law of the jurisdiction. As earlier noted, arbitration awards generally are legally binding and enforceable in most jurisdictions.

The United States Arbitration Act, 1925, provides for enforcement of arbitration agreements and awards, but in inter-state commerce and international contracts though it now has a model law on matrimonial arbitration.[4] The Nigeria Arbitration and Conciliation Act[5] equally provides for arbitration agreements and awards in commercial disputes only. Arbitration is different from mediation in that while arbitration is less formal than litigation, mediation is less formal than arbitration. Also, unlike an arbitrator, a mediator does not have the power to render binding decisions on couples. An arbitrator holds evidentiary hearings with the couples but a mediator does not.

The following are the typical steps divorce arbitration follows:

  • A party, at Court proceedings may file a demand for arbitration;
  • The other party is notified and a Reply is requested;
  • The arbitrator is selected by the parties;
  • A hearing date and location convenient for the parties and the arbitrator is arranged;
  • At the hearing, testimony and documents are submitted to the arbitrator, witnesses are questioned and cross-examined;
  • The arbitrator then issues a binding award, copies of which are sent to the parties.

CONCLUSION

In summary, since 1964, Divorce Arbitration has become one of the many processes used to resolve disputes between divorcing parties. It is often used when couples have reached an impasse or stalemate in their divorce negotiations, and wishes to resolve the issues without going to Court. Divorce Arbitration is a type of divorce trial, but instead of couples resolving their dispute in a public courtroom, their case is heard in a private setting before an Arbitrator.  This setting is called an arbitration hearing and is scheduled at a time and place convenient to all parties, unlike a Court trial, which is scheduled subject to a trial Judge’s availability.[6]

REFERENCE

  1. (1964) 22 AD 2d 126, 254 NYS 2d 32 323.
  2. Arthur O’Sullivan; Steven M. Sheffrin, ‘Economics: Principles in Action’ (2003) New Jersey: Pearson Prentice Hall. p.324
  3. [2008] No 14-07-00991-CV [Tex. App.-Houston [14th Dist.]]
  4. Model Uniform Arbitration Act 2003
  5. The Nigerian Arbitration and Conciliation Act, Cap. A19, LFN 2004.
  6. Adamopoulous, A. S., Understanding Divorce Arbitration and Mediation. < http://www.mdrs.com/neutrals/interviews-with-the-experts/understanding-divorce-arbitration-and-mediation/ > Accessed on 19th July, 2022.

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