While arbitration is not as talked about as mediation, it is a common method of divorce resolution throughout the U.S. Arbitration certainly has its advantages: It's often faster and cheaper than going to trial. You also get to set the rules on things like how long the arbitrator has to issue a decision, and whether or not an arbitration award can be appealed. Of course, just because an arbitration award can be appealed doesn't necessarily mean that the Appellate Division will review it. In fact, an arbitrator's decision is extremely difficult to appeal unless there are clear cases of fraud, corruption, or similar misconduct on the part of the arbitrator.
So, just why is an arbitration award so difficult to appeal? First, keep in mind that an arbitration is run similar to a trial, even though you get to select the arbitrator and the time and place to conduct the arbitration. Second, arbitrators are legal professionals, typically high level lawyers such as certified matrimonial law attorneys. You and your spouse will attend the arbitration with your attorneys and be given the chance to present your case as you would during a trial. Because of the arbitrator's qualifications, they will be basing their decisions on legal precedence and existing statutes, as well as their understanding of what is fair and just, based on their extensive trial experience. In short, it is assumed that an arbitrator has made a fair and legally sound decision, and the burden is on you to prove otherwise.
Third, the strict limitations in appealing an arbitration award are clearly spelled out in N.J.S.A. 2A:24-9, which basically states that fraud, corruption or mistakes (intentiona or accidental) by the arbitrator are the only reasons to modify or vacate an arbitration award. One example of a mistake by an arbitrator is when he or she decides on or touches on an issue that was not presented to them for review. This could be a genuine mistake, since many issues in a divorce are related or interlinked, but it does go against the standard protocol of the arbitration process. It also violates one or both party's right to be heard prior to the issuance of a legal judgment (due process).
In spite of these limitations, arbitration is still a valuable option for spouses who have either failed at mediation, or cannot participate in mediation due to the volatile nature of their relationship. It's also reassuring to be able to select an arbitrator, which is not an option you would have in litigation. There is further reassurance in knowing that the arbitrator has the experience and discretion to make a sound and balanced decision. If you happen to end up with an arbitrator or a decision that doesn't quite seem legit, that's when you should speak to your attorney about the possibility of an appeal. For more information on the arbitration process in New Jersey, please speak with the family law attorneys of Villani & DeLuca, P.C.