Divorce and Arbitration in the Era of the Coronavirus (COVID-19) Pandemic

The pandemic has affected people’s lives in many ways.  Anxiety permeates our present way of life.  Much is uncertain.  Accessing justice and obtaining relief does not need to be out of your reach.  While future access to the courts is uncertain, access to justice and dispute resolution is not.

The Supreme Court of Virginia recently recognized the issues the pandemic is causing and will continue to cause into the future.  In its order permitting courts to partially re-open to general matters on May 18, 2020, the Court recognized that tens of thousands of cases are likely awaiting filing, which will result in a severe backlog of cases when the courts begin to hear new non-emergency cases once again. Many resources are available to obtain judicial relief outside of a courthouse.  One such resource is arbitration.

Arbitration is one of several options available in what is regularly referred to as “alternative dispute resolution.”  Prior to the pandemic, mediation was often used to resolve conflicts between parties involved in active litigation.  Mediation only became binding on the parties if the parties reached an agreement and signed a contract reflecting that agreement. In mediation, the parties sit down with a mediator, often a retired judge, and resolve the matter through discussion.  Unlike mediation, arbitration is a private court proceeding. The rules of procedure, evidence, and the effect of a ruling is agreed to by contract between the parties before the arbitration commences.  Arbitration may be binding or non-binding.

A binding arbitration award is valid so long as the contract to arbitrate is valid[1] and so long as the arbitration was not “unconscionable or against public policy.” Bandas v. Bandas, 16 Va. App. 427, 432, 430 S.E.2d 706, 709 (1993).[2]  Arbitration is favored by the courts and awards arising from such private proceedings are regularly recognized and enforced by the courts. See e.g. Marks v. Marks, 36 Va. App. 216, 548 S.E.2d 919 (2001). Arbitration is an effective and efficient means to access justice while avoiding congested, or otherwise inaccessible, courtrooms. 

Non-binding resolution results in an award that would not be enforced by a court.  Such “awards” would be advisory only.  These advisory awards may be useful in reaching an agreement between the parties as a result of the advisory award or in further mediation.

An arbitrator, like a mediator, is often a retired judge or is an experienced attorney.  With arbitration, we prefer to engage the services of a retired judge who we know to be (1) familiar with the intricacies of family law and (2) comfortable with the raw emotion often evoked during a proceeding. An arbitrator hears a limited number of cases and, as such, will have a much deeper understanding of the case before them and should have a greater willingness to enter an award that is detailed and particularized to the parties. However, an arbitrator is paid for by the parties according to the contract entered into between the parties and the arbitrator, unlike a courtroom judge (a government official).

While cost may be an issue, such cost may or may not be more than that incurred during the course of regular litigation. For example, a person with specialized knowledge in family law may be selected by the parties to preside over the arbitration while in a courtroom, the judge is randomly selected by the clerk’s office.  A knowledgeable judge leads to a reduction in litigation costs that may otherwise be necessary in educating a courtroom judge who hears all types of cases.  Moreover, a courtroom judge hears these myriad cases throughout each day, every day.  Due to the heavy dockets, a courtroom judge often requires his or her memory to be refreshed before every hearing in order to recall the specific facts and situation of a particular case. Also consider the limited time that a courtroom judge has to dedicate to any given particular matter that comes before him or her. In such a situation, the orders entered are often mere broad strokes to provide a patchwork resolution to the matter which may or may not be convenient to either party.  In arbitration, an arbitrator should provide an award that is particularized to the circumstances of the parties before him or her.

Should you need a resolution to your conflict now and not in the indefinite future, you should strongly consider the pluses and minuses of engaging in binding arbitration.  We are available to discuss the process with you in more detail should you be interested in learning more about arbitration as a means to resolve your legal disputes.


[1] See e.g. Va. Code § 8.01-581.01 available at https://law.lis.virginia.gov/vacode/title8.01/chapter21/section8.01-581.01/

[2] Specific reasons for overturning an arbitration award are listed in Va. Code § 8.01-581.010 available at https://law.lis.virginia.gov/vacode/title8.01/chapter21/section8.01-581.010/

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