Although arbitration in Illinois is not mandated or authorized legislatively, divorcing spouses may still enter into an arbitration proceeding voluntarily. Arbitration is not the same as mediation, which is nonbinding on the parties. If the parties enter into arbitration, they both agree to be bound by the decision of the arbitrator. Arbitration may be particularly useful in complicated divorces, such as those with unique child custody and support issues or division of complicated investments and real property matters.
The Arbitration Process
Arbitration happens outside of a courtroom and does not involve a judge. Instead, the parties both agree to permit a third-party arbitrator to hear the case, consider the evidence and make a determination. Once the arbitrator renders his decision, it is used as the basis for an agreed judgement of divorce. The parties must be present in the courtroom when the final judgement of divorce is entered. The arbitration process avoids the pitfalls of litigation, which may be contentious and public.
Benefits of Arbitration
Privacy and confidentiality are among the key benefits of arbitration. Divorce records are public, so any information released in a divorce through discovery, filed pleadings or court appearances are part of the public record and may be accessed and viewed by anyone, unless a pleading or part of discovery is sealed by order of the court. Although the parties are required to bear the additional cost of paying the arbitrator, the arbitration process is shorter and more direct than litigation; thus, the actual legal fees paid by the parties are typically less.
Model Family Law Arbitration Act
Illinois, like most states, has not adopted the Model Family Law Arbitration Act. This act was adopted by the American Academy of Matrimonial Lawyers in 2005. For states that have adopted this act, arbitration facilitates a non-judicial process that results in a binding decision on the parties. Although no judge participates in the arbitration, the act provides for the arbitrator to address issues such as property division, spousal and child support, custody, visitation, and other issues typically decided by a family court judge.
Arbitration Limitations in Illinois
While arbitration is used in Illinois for other types of cases, typically under the Mandatory Arbitration Act, the state has yet to adopt a universal divorce arbitration process. Therefore, when arbitration is used, there are some pitfalls. For example, finding qualified arbitrators acceptable to both parties might be difficult. Being bound by the arbitrator's decision with no appeal available might be hard for spouses to accept when it is not an established practice. In addition, the lack of standardization of arbitration agreements among parties, attorneys and arbitrators might confuse the participants.