Bar News - February 22, 2013
Arbitration: An Alternative to Litigation in Domestic Relations Cases
By: Anne Barber, Philip Cross and David Forrest
New Hampshire’s arbitration process provides a timely and effective alternative to litigation for practitioners of family law and their clients.
Arbitration reduces delays and the significant financial and emotional costs associated with resolving these difficult cases, especially given the court’s current scheduling constraints.
The Advantages of Arbitration
• You pick the arbitrator who will decide the disputed issues;
• You and your arbitrator pick the day(s) of your hearing(s). The scheduling can be far quicker and more convenient than the courts’ current schedules allow or likely will allow for the indefinite future;
• Following the arbitration, you get a written decision within the number of days specified in the stipulation to arbitrate;
• Your case has the arbitrator’s full attention. There are no cases competing for time on the day’s docket and no other business that day to interrupt the arbitrator’s concentration;
• You and your arbitrator can decide the nature and formality of the arbitration. For example, you can agree to arbitrate issues for temporary and/or final decisions. You can also agree as to whether the rules of evidence will apply during the proceeding;
• You and your clients can consult privately during the arbitration;
• The arbitrator’s award has the same legal effect as a marital master’s recommendations;
• You greatly reduce the time and cost of the litigation for your clients; and
• You reduce your client’s stress from the uncertainty inevitably caused by the courts’ delay in resolving the case.
State law authorizes that: "The parties to any contested issue in a domestic relations case in superior court may file a stipulation… in which (they) and their attorneys, if any, agree to submit the case to arbitration." The statute refers to superior court because it was enacted before the superior court had jurisdiction of domestic relations cases.
The stipulation to arbitrate, once approved by the court, is "valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract," according to RSA 542:1.
Once the stipulation is filed, the court must halt proceedings. The court continues to have the authority, however, to hold proceedings to enforce existing orders and the agreement to arbitrate, and to grant and enforce emergency orders. The arbitration may nevertheless terminate and the case may be returned to court by the parties’ written agreement or at the arbitrator’s written request, according to state law.
The stipulation to arbitrate must include the name of the arbitrator, who must be a licensed New Hampshire attorney, and the issues to be resolved in the arbitration. State law defines issues for arbitration as those "which have not been resolved by prior court order or court approved stipulation." The law also dictates that the parties are solely responsible for the costs and fees of the arbitration.
Arbitration has many of the same characteristics as a court proceeding. The rules of evidence may apply, and witnesses may be compelled to attend and testify, failing which the court may compel them or find them in contempt. Additionally, discovery may be conducted in advance of the arbitration and depositions may be taken.
The arbitrator must issue findings on all issues of law and fact, which are then submitted to the court and have the same effect as the report of a marital master. Following the arbitrator’s award, the law allows for a party to apply within one year to the court for an order confirming the award, modifying or correcting the award, or vacating it. If the court vacates the award, the court may order a rehearing by the arbitrator or appoint a new one.
Once the court confirms, modifies or corrects the arbitrator’s award, judgment may be entered and an aggrieved party may appeal.
Arbitration gives lawyers and their clients the ability to manage their cases in a timely, effective and cost-efficient way, without the adversarial nature of litigation, while still offering the protections of the legal process.
Anne D. Barber (236-6724; email@example.com) David S. Forrest (533-1059; firstname.lastname@example.org), and Philip D. Cross (930-4271; email@example.com) all served for eight years as marital masters, until their terms expired in September 2012. They offer arbitration individually or as a panel, can schedule sessions expeditiously and will provide written decisions within 14 days of the conclusion of the arbitration.