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Divorce Arbitration in Seattle, Washington

In some instances, divorce arbitration is a process that allows individuals to settle their divorce disputes outside of court. With arbitration, both parties present their divorce disputes privately to someone known as an arbiter. An arbiter isn’t a judge, but is a person selected by both parties to make binding decisions about the dispute. Couples who are getting divorced can choose divorce arbitration to settle their divorce dispute outside of court (with certain important limitations), and in some instances, divorce arbitration might even be court ordered.

Because arbitration involves the settlement of a divorce dispute outside of court, arbitration is sometimes confused with meditation, which also involves the settlement of a divorce dispute outside of court. Arbitration is different than mediation, though both these processes are alternative dispute resolution methods used by couples to help them settle their divorce disputes.

In this article, we’ll define divorce arbitration, explain the difference between divorce arbitration from other alternative dispute resolution options for divorce, review the role of the arbiter, briefly discuss the divorce arbitration process and types, and explore the potential limitations of choosing divorce arbitration in Seattle, Washington.

    1. What is Divorce Arbitration?
    2. What’s the Difference Between Divorce Arbitration and Mediation?
    3. What is the Difference Between Divorce Arbitration and Collaborative Divorce?
    4. Why Choose Arbitration Over Other Alternative Dispute Resolution Options?
    5. Who Can Serve as an Arbiter in Washington State?
    6. What is the Divorce Arbitration Process?
    7. Limitations of Arbitration in Divorce
    8. Next Steps

What is Divorce Arbitration?

Arbitration usually arises in the context of contract law. It typically arises in a situation where two businesses or two parties have a dispute about a contract and choose to resolve their disagreement outside of court, through private arbitration. Rather than arguing a case in court, where everything involved in the case is made public, arbitration is handled in private, potentially protecting sensitive information involving both parties. With arbitration, a judge doesn’t decide a case, but rather an individual known as an arbiter is hired by both parties to hear each person’s evidence. The arbiter makes final decisions about disagreements and the arbiter’s decisions are binding.

Many aspects of a divorce can be settled through arbitration. Divorce arbitration has the benefit of allowing both parties to choose who will decide their case and gives both parties the benefit of working through their divorce dispute in private. When a divorce is taken to court, any evidence presented to a judge will become public record. Divorce cases can reveal sensitive information about individuals’ sexual lives, private lives, and their financial lives. With divorce arbitration, this sensitive information is discussed in private, and the only aspect of the case that ends up on the public record is the arbiter’s final decision.

Divorcing couples may go into arbitration because their prenuptial agreement includes an arbitration clause. Others may end up in arbitration through court-mandated arbitration. Some couples choose arbitration as their preferred path to settle their divorce dispute through alternative dispute resolution.

What’s the Difference Between Arbitration and Mediation?

Divorce arbitration is like divorce mediation in that in both circumstances, couples decide (or are ordered by the court) to engage in alternative dispute resolution. This means that in both cases, divorcing couples try to resolve their disputes outside of court, in private. The main difference between arbitration and mediation is that divorcing couples work with a mediator rather than an arbiter.

While an arbiter starts out as a neutral party, eventually the arbiter’s role is to make a formal decision about the case.

A mediator never makes formal decisions for a couple in mediation but remains neutral throughout. The mediator’s role is to help the divorcing couple negotiate their disagreements, and ultimately reach an agreement about how the divorce should be settled. Mediators help divorcing couples find “middle ground,” assist divorcing couples with communication, and help divorcing couples work together to find solutions. If the couple cannot resolve their disagreement with the help of a mediator, the case is often taken to court. When couples work with a mediator, their lawyers are also often involved. A mediator cannot offer legal advice, so many couples bring their lawyers to the negotiating table to provide legal advice during the negotiation, and to represent their interests. If the couple and their lawyers cannot resolve the case through mediation, the case often ends up in court before a judge.

With arbitration, both parties are often represented by their own divorce attorneys who help them present their case to the arbiter, in much the same way a divorce attorney would present a case to a judge. Like mediation, in some instances, the arbiter can help the couple negotiate their dispute, but unlike mediation, if negotiations break down, the arbiter is there to make a final and binding decision.

What is the Difference Between Arbitration and Collaborative Divorce?

Collaborative divorce is like arbitration in that both parties agree to settle their divorce outside of court before they begin the formal process.

With collaborative divorce, each party hires his or her lawyer and the lawyers work together to help couples reach a divorce settlement. There is no single person assigned to make decisions about the case; everyone works together toward a resolution. Sometimes, a mediator may be brought in if discussions become tense. Other parties like therapists, counselors, or financial planners may also become involved to help the couple work through various aspects of the divorce settlement and parenting plan. If the couple cannot resolve their differences through the collaborative process, then the couple must start the whole process over if they want to take the case to court. This means they must hire new lawyers and seek a court date. With collaborative divorce, both parties have an incentive to reach an agreement and negotiate their divorce settlement.

Unlike collaborative divorce, arbitration is ultimately a more adversarial process. Once couples choose arbitration, the possibility of taking the case to court is generally off the table (with a few important exceptions). While the arbitrator might use negotiation tactics to work with the couple’s lawyers and the couple themselves, ultimately, the arbitrator can make the final decision, and that decision is binding (with a few important exceptions).

Why Choose Arbitration Over Other Alternative Dispute Resolution Options?

Couples might choose arbitration over other alternative dispute resolution options like mediation or collaborative law if they don’t believe that they will be able to work together effectively to negotiate a divorce settlement. Couples facing an adversarial divorce, or couples who cannot communicate effectively, may choose arbitration when they want the privacy and choice that alternative dispute resolution provides, but don’t think that collaboration or mediation will work for them. Couples might choose arbitration over other alternative dispute resolution options if their prenuptial agreement requires arbitration. Finally, couples may choose arbitration when they don’t have children, because there are limits to what can be arbitrated when couples have children and need to create a parenting plan.

Who Can Serve as an Arbiter in Washington state?

When a divorcing couple agrees to arbitration, they typically will also agree on a “method for appointing an arbiter” under RCW 7.04A.110. One of the benefits of choosing arbitration is getting to decide who will make decisions on your case, rather than being appointed a judge by the court. Sometimes, the couple cannot agree on who should arbitrate their case. If arbitration has been agreed upon through a prenuptial agreement, or if both parties have agreed to arbitration, then the couple can go to court to have the court appoint an arbiter for them.

Washington law RCW 7.06.040 governs who can be an arbiter in Washington state, when the court orders arbitration. An arbiter must have been admitted to the bar for at least five years or be a retired judge. Arbiters must also have completed three credits of ethical and professional continuing education to serve as an arbiter. Yet, if a person has served as an arbiter at least five times prior, or if both parties agree to hire a nonlawyer arbiter, the court could waive these requirements.
The arbiter must abide by ethical standards, meaning the he or she must be truly neutral, and not have an “existing, and substantial relationship with a party” in the case.

What is the Divorce Arbitration Process?

There are two main types of arbitration: arbitration initiated by the divorcing couple (either by mutual decision, or through a prenuptial arbitration agreement), or court-ordered arbitration.

When a couple decides independently to settle their divorce through arbitration, either by mutual decision at the time they choose to divorce or through a prenuptial agreement, the decision made by the arbiter is binding, meaning there is no option to appeal (with a few key exceptions).

The court may order arbitration under RCW 7.06.020 when couples take disputes involving child support payments or alimony to court. With court-ordered arbitration, individuals have the right to appeal the decision made by the arbiter under RCW 7.06.050, and still have the right to a trial by jury under RCW 7.06.070. If the court orders arbitration, one or both parties can appeal an arbitration ruling they don’t like by requesting a whole new trial.

When arbitration is court-ordered, the process is more formalized and subject to Washington law and each county’s rules. The process involves discovery and both parties have the option to appeal. General, the arbitration process will follow formal court procedures.

When a couple agrees to private arbitration, the arbitration process falls under Washington’s Uniform Arbitration Act, which can result in a more informal process, or a process that is largely decided and governed by the arbiter. If a couple agrees to arbitration through their prenuptial agreement, then the agreement might govern how the arbitration should proceed and how an arbiter should be chosen. And if a couple agrees to arbitration when they decide to get divorced, they may decide on procedures either through mutual agreement or let the arbiter they choose make these decisions.

Limitations of Arbitration in Divorce

The decisions made in arbitration regarding child custody or parenting plans can always be challenged in court. When a couple takes a custody or parenting plan to court, the court may send a couple to court-ordered mediation. Arbitration is only ordered in cases involving child support, and never in child custody cases or parenting time cases.

When a couple decides to enter arbitration either because of a prenuptial agreement or chooses arbitration when they decide to get divorced, it is important to understand that the arbiter’s decision will only be binding regarding decisions related to a couple’s finances and assets. This means that arbitration may be binding in cases where an arbiter makes decisions about division of assets, debts, alimony, and child support, but not binding in terms of decisions relating to a parenting plan.

If you and your former partner disagree about decisions made by an arbiter regarding your parenting plan, you can take your case to court, and the case may be subject to superior court review under Washington law RCW 26.09.184. This is further supported by Washington court precedent in the Parentage of Smith-Barrett case, where the court found that “domestic relations statute require de novo review” meaning that, while parents have the right to choose arbitration to decide on custody or shared parenting time, and have the right to accept an arbiter’s decision (if they both agree), parents also have the right to have any decisions they don’t agree with pertaining to shared parenting time and custody reviewed by the superior court, effectively opening a whole new court case.

So, while a couple can voluntarily agree to let an arbiter make decisions regarding custody and parenting time, these decisions can be appealed if one party doesn’t like the decision the arbiter makes. Taking a custody battle or parenting plan to arbitration entirely relies on the good faith of both parties to accept the arbiter’s decision.

Unlike decisions involving finances and assets, which are final if arbitration is agreed upon, decisions reached by an arbiter regarding the parenting plan may be subject to appeal.

Because of the added complexities that parenting plans raise in arbitrated divorce, some couples choose collaborative divorce, or mediation, or both, as alternative dispute resolution options, rather than arbitration. Aspects of the divorce agreement related to domestic relations (the parenting plan) can always be taken to court. Some couples still choose to proceed with arbitration, with the understanding that aspects of the decision regarding the parenting plan or custody could be appealed to family court.

Next Steps

If you’re in the process of writing your prenuptial agreement, you and your partner may want to put provisions in place for alternate dispute resolution. Some couples agree to settle their divorce using arbitration, while others choose mediation or collaborative divorce. If you’ve already agreed about an alternative dispute resolution method in your prenuptial agreement, you may be required to follow these procedures, unless you chose arbitration and your case involves children, custody, and a parenting plan. An example would be a situation where a person signed an arbitration agreement, but there was a conviction of domestic violence, or where one parent is concerned for the safety of the children, or where one parent disagrees with the arbiter’s decision regarding the parenting plan. In this instance, you may want to speak to a family law attorney in Seattle, Washington to help you understand your options.

If you don’t have a prenuptial agreement, and you’re thinking about getting divorced, you and your former partner will need to decide how to proceed, namely, whether you want to take your divorce dispute directly to court, or whether you and your partner want to choose alternative dispute resolution methods like arbitration, collaborative divorce, or mediation.

The way you choose to get divorced matters and can affect how long it takes to settle your case. If you’re not sure how to proceed and want to learn more about the different processes available to you, you may want to reach out to Truce Law. Truce Law is a collaborative divorce law firm in Seattle, Washington that helps divorcing couples use alternative dispute resolution methods to settle divorce disputes and write their divorce settlement agreements.

While this article is meant to offer general information about alternative dispute resolution methods, it is not legal advice. If you’re thinking of using arbitration to settle your divorce, or if arbitration has been mandated either through a prenuptial agreement or through the courts, you may want to speak to a Seattle, Washington divorce lawyer today.

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