Arbitration in Family Law Cases

Arbitration is an alternative dispute resolution method that allows for parties to have their family law issues resolved without going to court. 

North Carolina’s Family Law Arbitration Act (N.C.G.S. 50-41) allows couples to choose to arbitrate any or all issues arising from a separation or divorce, except for divorce itself. This can include any or all of the following issues: Equitable Distribution, Alimony, Child Support, or Child Custody. Arbitration is not a mandatory requirement and is something that the parties must mutually agree to before submitting an issue to an arbitrator. The parties agree to submit an issue or issues to a neutral third-party arbitrator, who acts almost like a private judge by hearing evidence and providing a binding or non-binding decision. The parties typically share the cost of the arbitrator unless their agreement allows the arbitrator to allocate the costs differently.

South Carolina has not adopted a family-law specific arbitration act like North Carolina, but parties may mutually agree to utilize arbitration as an alternative dispute resolution for property and alimony issues under the Uniform Arbitration Act, which South Carolina has adopted. South Carolina case law has held that it is not permissible to submit child custody and child support issues to binding arbitration with no right to judicial review. Child custody and child support issues may (or, when there is a lawsuit pending, must) be submitted to mediation as an alternative dispute resolution prior to trial. In South Carolina, arbitrators can be certified by South Carolina’s Board of Arbitrator and Mediator Certification, but parties can choose an arbitrator who is not certified by the Board. All arbitrators must follow the Alternative Dispute Resolutions Court Rules and the Code of Ethics for Arbitrators that South Carolina has adopted.   

Arbitration Process
In arbitration, parties have a private trial in front of an arbitrator who issues a binding or non-binding decision that the parties must then follow. Similar to a trial in front of a judge, the parties present documentary evidence and testimony, and then the arbitrator (instead of a judge) issues a decision. An arbitrator can issue subpoenas for witnesses to appear and for production of documents or records needed. The arbitrator administers oaths for witnesses to testify and can take depositions, if needed. You can and should be represented by the attorney of your choosing during arbitration.

Benefits of Arbitration

• Privacy. Arbitration is a private proceeding, unlike a court proceeding which becomes part of the public record. An arbitration “award” (what the arbitrator’s order is called) can be confirmed by a court if the parties agree to that. If you do not want the arbitration award to be confirmed by the court and become a public record, you can choose to enter into a private contract at the end of the arbitration process instead.
• Arbitrator selection. You can hand-select your arbitrator, which allows you to choose someone experienced in your unique issues. This can be a great advantage because you don’t get to choose your judge in court. There is not one single certifying or accrediting body for arbitrators, but typically arbitrators are highly experienced family law attorneys (sometimes former judges) who are also trained in alternative dispute resolution. South Carolina has specific requirements for arbitrators who are certified by the South Carolina Board of Arbitrator and Mediator Certification to follow. Your lawyer will have suggestions for arbitrators who could be a good fit for your case.   
• Quick resolution. You can generally get in front of an arbitrator for a final, binding decision much more expeditiously than scheduling a hearing in front of a judge. Court calendars are notoriously full and sometimes backlogged.  
• Convenience. Arbitration is far more convenient, as you can set the time and date that works for you, your spouse, your attorneys, and any other witnesses who might need to be present.
• Cost-effective. Arbitration is generally going to be a more cost-effective option than a court hearing or trial. Saving time by getting a final decision sooner means saving additional money, too.
• Less formal. Arbitration is less formal than a trial in front of a judge and typically takes place in a more casual atmosphere, like the conference room of a lawyer’s office. The atmosphere can make the process less stressful than a court hearing and less adversarial.

​Disadvantages of Arbitration

• The decision can be binding. If the parties and counsel agree to binding arbitration, the arbitrator’s decision is binding and there is typically no right to appeal the arbitrator’s decision. If you are unhappy with the arbitrator’s decision, there’s sometimes little recourse to change it. In North Carolina, Child Custody and Child Support arbitration awards can be vacated if the court determines that the award for child support or child custody is not in the best interest of the child.  
• Enforcement. If your spouse does not adhere to the arbitration award, you will have to go to court to enforce the award. An arbitrator cannot hold a party in contempt for violating the arbitration award.  
• Cost. The most cost-effective way to resolve domestic issues with your spouse is to come to a negotiated settlement without too much back and forth between lawyers to finalize the settlement. When you involve third parties, like an arbitrator, to resolve your domestic issues it does increase the cost of resolving your marital issues but, as discussed above, arbitration is typically still more cost-effective than going to court.

​If you are interested in arbitration or other alternative dispute resolution mechanisms, please reach out to our office. As a firm, we focus on out-of-court resolutions for our clients and arbitration is a great option for many clients. Lindsey is available and qualified to mediate or arbitrate your case in North Carolina or South Carolina. 

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