Collaborative Arbitration is a binding arbitration process designed primarily for family law. It
differs from traditional arbitration because the arbitrator takes charge when the case starts and
continues until the end of the case when an arbitration award is made. Conversely, binding
arbitration is usually out-of-control litigation until the pre-trial and final trial when the binding
arbitrator first appears.
The Collaborative Arbitration agreement ALWAYS includes the ability to arbitrate the following
- how long the case can last;
- the total fees that can be expended, based primarily on the size of the estate;
- what issues can be explored and to what extent;
- what discovery can be done, but primarily includes an agreement that there must be full disclosure;
- any other issue that will prevent the case from being out of control, becoming a nasty or toxic divorce, etc.;
- temporary orders; rule on any other motion or an issue that arises;
- whether the parties will have jointly engaged experts or otherwise.
The only thing the arbitrator can't do is what is prohibited by law, which is to issue contempt
The primary purpose of Collaborative Arbitration is to give the parties certainty that decisions
will be made without one or both parties going off the rails, without the risk of the complete
unknown of litigation or the uncertainty of how long a collaborative divorce will take, how much it
will cost, and whether an agreement will be reached or not. Depending on the parties and their
lawyers (can be pro se), the process can include mediation before any major decision is
Michael Hiller, the process creator, is the only collaborative arbitrator trained and has used the process once
with pro se parties. He has just introduced the process on his website and is creating opportunities
for lawyers and the public to learn and use the process.
Functions (e.g., preventive, facilitative, evaluative, adjudicative)
It is an adjudicative process but is also preventative in that it will prevent any chance of high
emotional and financial capital expenditures. Further, it is facilitative because the arbitrator
can guide the parties and allow them to make their own decisions whenever possible. It is
evaluative because the arbitrator will give the parties an idea of how they might rule at any given
point in the process. That will further give the parties a chance to make their own decisions.
Ultimately, the arbitrator will have full decision-making power for any issue.
It has all the positives of collaborative divorce: it helps the parties feel safe,
respected, in control of their lives, and as comfortable as possible, given that the arbitrator will
make decisions whenever necessary. The process does focus on solutions and will limit the parties'
ability to focus on the negative qualities of each other unless truly necessary. Mental and financial
health will be paramount, rarely present in the courtroom. Schedules will be convenient for the parties, lawyers, and arbitrator. This is a transparent process.
Summary of Pros and Cons
Pros: Although limited discovery is available. The process is limited in time and cost (three months is
the goal for divorce). One party cannot outspend the other by going to wealthy parents - the
parties must use their own money, and fees will be limited to a reasonable percentage of the
estate. Unlike traditional binding arbitration, the arbitrator is involved from start to finish and
can limit the damage that can usually be done. All arbitrators and lawyers will be trained by the
founder of the process or others he will train, guaranteeing uniformity of the process. Even high
conflict and parental intonation cases can be handled in collaborative arbitration, provided either
the parties agree...
or the judge makes it difficult to hear these cases in their
courtroom. Lawyers will collect a much higher percentage of fees charged than usual because the process is efficient. Not because I created it but because this process is designed to manage or eliminate virtually
every negative possibility in current family law processes, including collaborative
divorce. The creator of collaborative arbitration(CA) believes CA can be the model for the future
of family law, not only as an arbitration process but in the courtroom and other areas
Cons: 1) if the parties cannot make decisions quickly, the arbitrator will make them. Many purists believe that the only good decisions parties to divorce can make is when they make them without someone else deciding for them.
The creator of collaborative arbitration maintains that collaborative divorce has not been successful because of resistance to not having a third party available to make decisions when necessary, But many proponents of mediation and collaborative divorce think that is necessary for the parties to make their own decisions. From that perspective, collaborative arbitration has this con.
2) The arbitrator cannot make enforcement decisions that could result in jail. Compared to what a judge can do, this is the one limitation of a collaborative binding arbitration. On the other hand, it would be easy to agree that the collaborative arbitrator would do everything but enforcement decisions, or the collaborative arbitrator could make enforcement decisions that did not involve the possibility of jail, fine, or Other contempt punishments.
Barriers to Use, Natural Fits for Use, Role of ADR Professionals, Opportunities for Expansion of Use
Barriers to use are:
- The usual fears of arbitration many lawyers harbor, primarily because it is very unlikely to be successful on an appeal;
- Collaborative divorce purists who think that the only positive process has to include the complete ability of the parties to make their own decisions;
- Judges cannot order binding arbitration(Although they can make it a de facto order by limiting a case's ability To get heard); Further, a judge can set up a voluntary process where parties and their lawyers can agree to try collaborative arbitration. Attorney Hiller is currently looking for a judge to start a pilot project with this as the goal.
- The usual resistance that lawyers have to new processes; 5) the myth that lawyers make more money from litigation or even collaborative divorce, where there is no limit to the time or money that can be spent - In C.A. there is a limit as to what percentage of fees charged can be collected.
It is a natural fit for any case that needs a decision-maker, or for hesitant collaborative divorce
lawyers who want the ability to have a third party make a decision whenever necessary. Great for
almost any party, with or without lawyers, who want their case limited in time, cost and emotional
The role of the ADR professional in collaborative arbitration is to be primarily a binding
arbitrator; however, the arbitrator should encourage informal mediation On any decision, provided
it doesn't Significantly increase the cost or time of the case. The ADR professional should be
trained in Collaborative arbitration, binding arbitration, mediation, and, ideally collaborative
divorce as well.
The opportunities are endless, provided proponents of collaborative arbitration can reach the
public and lawyers who will be receptive to it. Regarding expanding into other areas, probate is
a great candidate. Other areas of law are also candidates, especially smaller cases. The
opportunities are as great as lawyers and parties are willing to open their minds to better ways
to resolve disputes.
Materials are subject to Copyright 2023, Michael Hiller and Hiller and Associates, PC.