What is Arbitration?

Arbitration is a dispute-resolution process in which the disputing parties choose one or more neutral third parties to make a final and binding decision resolving the dispute. Both parties present evidence and arguments supporting their positions and then once both sides are heard, the arbitrator delivers a decision.

During this difficult, stressful, and uncertain time of COVID-19, the Courts have continued thousands of cases (with limited exceptions). While Courts are beginning to resume some proceedings, they will not resume normal functions for at least several months, possibly well into Fall 2020. This means there will be significant delays in family law cases. With this in mind, lawyers and parties should explore alternative ways to address family law issues that are fair, efficient, and safe. Arbitration is one of those ways.

Chief Justice Cheri Beasley of the North Carolina Supreme Court appointed a Task Force to recommend how and when Courts should ramp up operations during this pandemic. Following the Family Lawyers’ meeting on May 5, 2020, they recommended mandated arbitration, as “[t]here are trained arbitrators available to assist the courts in dealing with the backlog of trials.” They went on to say, “[t]he reference power of the court, pursuant to Rule 53 of the NCRCP, already provides some authority for the court to appoint a referee (arbitrator) absent agreement of the parties” and “the court may retain the authority to look behind the referee if that is warranted under certain circumstances.”

The North Carolina Family Law Arbitration Act allows, by agreement of the parties, the arbitration of all issues arising from a marital separation or divorce, except for the divorce itself. The Act preserves a right of modification based on substantial change of circumstances related to alimony, child custody, and child support. Arbitration is an efficient and speedy means of resolving family law disputes consistent with the family law statutes.

Arbitrators can assist with complex matters that require lengthy trials, such as alimony, equitable distribution, and complicated support issues. Alternatively, arbitration is a way to resolve narrow issues such as “where a child will attend school” or “who gets the possession of the former marital residence” or “the value of a business.” Since arbitration may be conducted remotely, it allows parties to address family law issues safely and timely.

As Courts continue to operate with reduced capacity, in-person hearings for family court matters in Mecklenburg County and surrounding counties will be limited. As often as possible, the hearings will be by verified pleadings and Affidavits, or held virtually (e.g., via Web Ex). Further, cases that were on dockets from March 16, 2020 to June 1, 2020 (nearly 7 weeks of hearings/trials) need to be rescheduled.

At this time, it is unknown the delay that families face in having their matters heard by the Court. As we deal with the uncertainty and disruption in family court, lawyers and parties need to find alternative ways to address family law issues, and arbitration is an option.

1. Todd Owens presided as a Family Court Judge, and has extensive experience arbitrating domestic matters. Allison Holstein is a Family Law Specialist and has arbitrated domestic matters. Richard D. Stephens is a Family Law Specialist and has handled a wide variety of arbitrations both as an attorney and arbitrator.

This information is provided for informational purposes only; it is not offered as and does not constitute legal advice.