Some couples who seek a dissolution of their marriage also decide to have
their disputes over the
separation resolved outside of the court system. Colorado law allows parties to a
dissolution proceeding to agree to arbitrate the disputed parts of their
separation rather than going through the court system. Arbitration is
a private means of dispute resolution where the parties have the freedom
to customize the scope and procedures under with the arbitrator will arrive
at the decision in the case. Pursuing a custom arbitration instead of
going through the court gives the parties some level of control over how
their dissolution will be resolved—often in a more expeditious and
convenient manner—before a decision-maker that both parties agree to.
Arbitrators are different from mediators. Mediators do not decide the case
but seek to bring the parties together to reach an agreement that they
both can live with. On the other hand, arbitrators decide the case and
their findings are binding absent a reversal by a court.
In a dissolution proceeding, the parties agree to mediate their disputes
and then, in the same agreement, provide for arbitration of those disputes
that are not resolved by the mediator. This agreement is a written document
that describes in detail which of the parties' disputes will be resolved
by arbitration and who will be the mediator and arbitrator. Colorado permits
an arbitrator to decide all aspects of a judicial proceeding for dissolution,
from property division to child custody and parenting issues. But parties
should not proceed to enter into an arbitration agreement without legal
counsel since the finding of an arbitrator is binding on both parties
if the agreement makes it binding.
In dissolution proceedings, the parties will often first agree upon a mediator
to bring the parties together to arrive at an agreement that both parties
find to be fair and will sign as a contract. Then, if the parties cannot
come to an agreement, the parties will often convert the mediator into
In cases involving
child custody or parenting issues, a Special Advocate may be used as both mediator and
arbitrator. A Special Advocate, usually a mental health professional,
may be appointed by the court in a dissolution proceeding at the request
of one or both of the parties, or on the court's own initiative. A
Special Advocate is empowered to make recommendations to the court regarding
parenting issues. The parents in a dissolution proceeding who are having
trouble agreeing to custody and parenting issues can agree to use the
Special Advocate as both a mediator and arbitrator to resolve these matters
more quickly and with less conflict.
Once an arbitration award is entered, either party can ask the court to
confirm the award—making it an Order of the Court, subject to all
the enforcement remedies of the judicial system. If one party disagrees
with the arbitration award, he or she can ask the judge on the case to
conduct a new hearing on part, or all, of the award. Importantly, the
judge can only hold a new hearing if such a hearing is timely requested
(35 days after the arbitration award is entered). This deadline is mandatory.
Parties have been denied review of their arbitration awards when the objecting
party misses the deadline; the court has no authority to modify the arbitration
award if the deadline is missed.
Resolving disputes through mediation and arbitration in marital dissolution
proceedings is often to the benefit of both parties. But agreements for
mediation and arbitration in dissolution proceedings require the expertise
of knowledgeable family law attorneys. The
Colorado Springs family law attorneys at Clawson & Clawson LLP offer experience and knowledge so that arbitration
agreements entered in their cases are in the best interest of their clients.