What is Arbitration?

Arbitration is the process by which the parties agree to allow a trained arbitrator (rather than a judge) decide their dispute. The decision then goes to a judge in the applicable court for ratification–the process by which the arbitrator’s decision becomes a court order–but there are few bases upon which the court can refuse to ratify the arbitrator’s decision. A major distinction between mediation and arbitration is that the mediator has no ability to make the parties reach an agreement against their will while an arbitrator, much like a judge, can render an enforceable decision that the parties do not agree with but that still is binding upon them.

Litigants chose arbitration over trial for a number of reasons. Arbitration is less formal and not subject to the rules of evidence. Thus, it is often less costly to arbitrate a case rather than take a case to trial. Arbitration can be done quickly, as there is no need to wait for limited docket time to set a case for trial. Arbitration can take place at the parties’ and their attorneys’ convenience; the court decides when trial takes place with minimal consideration of such convenience. Parties select their arbitrator; they cannot select the judge. Arbitration is typically used in commercial disputes but is increasingly being used to resolve family court disputes. It is currently unclear under South Carolina law whether arbitration can lead to a binding decision on child custody and visitation but arbitration can clearly be used to reach binding decisions on all other family court issues.

In family court, the parties must agree to arbitration and must agree to the arbitrator. The parties can further agree to limit the issues that the arbitrator can arbitrate. They can even agree that the arbitrator must reach a decision within certain parameters. For example, in a child support arbitration, they could agree that the arbitrator cannot award child support less than $600.00 a month or greater than $1,000.00 a month.

Arbitrators can go through training to become certified by South Carolina’s Board of Arbitrator and Mediator Certification. Parties can chose to use arbitrations who are not certified but all arbitrators, whether certified or uncertified, must comply with the rules regarding alternative dispute resolution.

Arbitrators are typically paid by the parties requesting their services, though the court can reallocate the arbitrator’s fees at trial or, if the parties authorize it, the arbitrator can make allocation of his or her fees part of the decision.

Mr. Forman’s hourly rate for arbitration is $400.00. If you desire Mr. Forman to act as an arbitrator, or represent you as your attorney in an arbitration, you are welcome to click here to contact his office.