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 the arbitrator.
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.