Arbitration in a Georgia Divorce

Arbitration is the agreed tender of a legal dispute to a neutral party who renders a binding decision. Arbitration is often confused with mediation. In mediation, there is merely a neutral party – the mediator – who attempts to facilitate a settlement between the parties. In arbitration, there is a neutral party who makes a binding decision after hearing an evidentiary presentation – a private judge if you will.

Georgia law allows parties to agree to arbitrate all aspects of their divorce, including custody matters (see O.C.G.A. section 19-9-1.1), pursuant to the Georgia Arbitration Code. (The Georgia Arbitration Code is contained in O.C.G.A. section 9-9-1 through 19-9-18.) A detailed arbitration agreement – who will serve as the arbitrator, whether there will be discovery, how this discovery will be conducted (prior to or within the arbitration context), when the arbitration hearing will occur, costs, etc. – has to be drafted, reviewed and approved by the parties’ attorneys, and executed.

The advantage of arbitration is the parties can both agree to disagree or some or all issues of the divorce and yet agree to have their dispute resolved in a manner they can control as far as relative cost and time. (Arbitration is also generally more dignified as you are not airing marital “dirty laundry” in a public courtroom.) For example, the parties can agree to file their action as contested, engage in structured discovery in the Superior Court for three months, then refer the matter to an agreed experience matrimonial arbitrator for a binding decision or let an already court appointed neutral (such as a guardian) "judge" the case. This will end the dispute much faster than the judicial process where the case may not come up on a final trial calendar for more than a year. This can also save tens of thousands of dollars in legal fees.

Most commonly, parties will arbitrate financial issues, but, as noted, custody can be included in an arbitration agreement as well. See, O.C.G.A. 9-9-3 for enforcement of agreements to arbitrate. See also, Duncan v. Mughelli, 324 Ga. App. 465, 465, 751 S.E.2d 127, 128 (2013) for an excellent illustrative case on how arbitration can be adopted during the contested process.

There, the parties entered into a consent order agreeing to allow the guardian ad litem to arbitrate their custody dispute. The consent order provided: “[The guardian ad litem]'s ruling shall be binding on the parties, and shall be incorporated by him into a proposed final order that either side or [the guardian ad litem] may submit to the Court as a final order in this case.” The guardian entered an arbitration award on custody, which the court approved and adopted as a final order.

O.C.G.A. 19-9-1.1 provides:

"In all proceedings under this article, it shall be expressly permissible for the parents of a child to agree to binding arbitration on the issue of child custody and matters relative to visitation, parenting time, and a parenting plan. The parents may select their arbiter and decide which issues will be resolved in binding arbitration. The arbiter's decisions shall be incorporated into a final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter's award would not be in the best interests of the child. In its judgment, the judge may supplement the arbiter's decision on issues not covered by the binding arbitration."

Accordingly, the arbitrator's custody ruling / award would be subject to judicial review as to whether the ruling / award is in the child's best interest. However, the court will likely give the arbitrator's ruling / award considerable deference, in particular if the arbitrator is an experienced and respected family law professional. Any ruling / award of the arbitrator is made a binding judgment of the Superior Court and has the same legal effect as a final order from a judge. See, O.C.G.A. section 9-9-15.