When Mediation Does Not Work

 A Better Alternative In A Contested Case



Copyright ©  Joyce F. Glucksman, P.C.  All Rights Reserved.

M                   Mediator ~ Arbitrator



     Divorce Arbitration is not new and is practiced in many areas of the country. Georgia law specifically provides for binding arbitration in divorce cases provided both parties agree. The arbitrator can decide all issues which the Court must incorporate into the Final Judgment and Decree. This includes  child custody “ unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter's award would not be in the best interests of the child.” O.C.G.A. 19-9-1.1

      Arbitrating divorces, equitable division, alimony, child support, modifications and even custody disputes have several advantages over the typical court action in Georgia. Like most arbitrations, it is faster and less expensive than litigation and can proceed contemporaneously with  mediation.    In some courts in the metropolitan Atlanta area it can take up to three months or more to get a temporary hearing. Many judges restrict the parties to fifteen (15) to thirty (30) minutes per side for a temporary hearing.  Testimony is limited to each party and one witness for each party.  The remainder of the information presented to the judge is by affidavit.  Affidavits are written by attorneys and can not be cross examined and thus are of very limited use.   An arbitrator,  can usually hold a temporary hearing within days.  Where child custody is an issue, in court the party who gets temporary custody most often gets permanent custody unless there is an agreement to the contrary or a guardian ad litem or custody evaluator finds evidence which indicates the temporary custodial parent should not have permanent custody. In contrast, a divorce arbitrator will set aside the time to listen to live witness testimony and cross examination instead of relying on the parties’ testimony and the usually self serving, attorney drafted, affidavits. 

    A well qualified professional mediator who is also an arbitrator can try to mediate the divorce first. However, if the parties can not agree or in which mediation may have resolved some but not all issues; the same professional can arbitrate and decide the unresolved issues. This is fraught with ethical issues and may result in the parties being less candid with the mediator.  Caucuses are ex parte communications so while mediation is encouraged and may occur during the same time frame as arbitration, a better practice is to have a separate arbitrator and mediator.  

    Sometimes the parties can resolve the valuation and  division of business assets, division of retirement benefits and support by themselves or in mediation or  even by trial. However, no lawyer, let alone a judge, likes to get into dividing “stuff” because disagreements about furniture and pots and pans are usually more about power and control, than  the actual value of the tangible possessions.  An arbitrator may have the patience and  can take the time needed to divide or supervise the parties dividing furniture, furnishings and other “things” etc.   

    From a legal standpoint a divorce is, in many ways, similar to a business transaction dividing assets and liabilities.  Hurt feelings about all the things that the other party did or didn’t do, including allegations of adultery, drug or alcohol abuse or other bad behavior,  often make little difference when it comes down to the final decision.  Judges have busy calendars which they have to move so they can’t take the time to hear all the bad things each party did during the marriage. In arbitration, the party who feels wronged can take all the time he or she needs to vent and tell the arbitrator, who from their perspective is functioning as a “judge,” what a bad person the other party is and then be ready to move on toward a final resolution.

    Privacy and confidentiality is another area in which arbitration can be a better solution than going to Court.  Trials are public.  As we saw with disclosure of a deposition given by well known actor Bill Cosby, something said in a Court proceeding which occurred years before, can have a devastating effect if it is revealed, even years later. Financial and business matters may be discussed as can bad conduct, drug or alcohol issues, etc.  Anyone who wants can sit in the courtroom and listen. This includes IRS agents who may be interested in the income or assets of a party including hidden assets, cash and what they think their business is worth.  If one of the parties is involved in unrelated litigation years later, attorneys on the other side of the case  have been known to look into divorce and custody actions in order discover anything they can which will help their current case. Counsel may look for preexisting medical or psychological issues, business decisions made, net worth at the time of the divorce or other matters.  Where there are transcripts of depositions or trial testimony  filed with the Court, anyone, including the parties’ children,  can go to the court and read all about the “dirty linen” that was aired.

    There is, of course a cost to arbitration.  Judges are paid by taxpayers and limited filing fees whereas the parties have to pay for an arbitrator.  However, it can be far less expensive to pay an arbitrator for his or her actual time working than it is to pay a lawyer to appear at calendar calls and to wait for their case to be heard or continued because of the Judge’s time constraints.  Lawyers  have to prepare for trial two, three or more times before they are reached on a trial calendar and must charge their clients hundreds if not thousands of dollars for each time they prepare.  With arbitration the hearing is set for a day certain so lawyers need to prepare only once.

    With arbitration you have a knowledgeable professional who has the time and expertise to listen and consider all the facts, issue a prompt decision and keep the matter private and confidential while keeping attorney’s fees lower than they would be if litigated in Court.