Arbitration and Private Judging
The Family Court, like so many other institutions these days, is terribly short of resources. A tiny number of well-qualified Family Court judges struggle mightily to handle thousands and thousands of divorce cases, and many more thousands of other juvenile and adult Family Court cases, each year. Calendars are overcrowded, court delays are long, and proceedings are abbreviated.
Family law issues are the least susceptible to successful resolution through adversarial litigation. In recognition of this, the Family Court has long favored alternative dispute resolution (ADR) in divorce cases.
Alternatives to divorce litigation include negotiation, conciliation, collaboration, cooperative divorce, mediation, mastering, private judging, and arbitration. Private judging and arbitration can either be binding or non-binding.
In Hawaii, by law, divorcing spouses may enforcibly agree to a division of their property in a manner different than what the Family Court might otherwise require in a contest, provided that their agreement to do so is not procured by corruption, fraud, or other undue means. Likewise, by extension, and in accordance with contract principles, divorcing spouses may enforcibly agree to assign to a private judge or arbitrator the authority to divide and distribute some or all of their property, in accordance with certain agreed instructions. Divorcing spouses may also enforcibly agree to arbitrate their alimony claims.
Although in many respects private judging and arbitration is similar to Family Court litigation, in private judging and arbitration the parties have much more control over the manner of the proceedings, and the progress of the case. Compared to traditional litigation, private judging and arbitration is quicker, and it provides a far greater opportunity to present all of the facts.
We serve as private judges and arbitrators in more financially complicated divorces as one of the panel of family law arbitrators of Dispute Prevention and Resolution, Inc., Hawaii’s premier private practice provider of ADR services.
The Family Court can, and does, appoint referees, auditors, examiners, assessors, commissioners, receivers, masters, and special masters to assist divorcing spouses.
Special masters serve in many different roles. They can make binding or non-binding findings of fact. They can assist in the separation of business and investment interests. They can implement the division and distribution of some or all of the assets in a marital estate. Their authority is limited only by the agreement of the parties, or the order of the Family Court. We use special masters wherever possible as an alternative to lengthy and expensive discovery, pretrial proceedings, and long trials.
We serve as special masters assisting divorcing spouses, and their attorneys, resolve divorce issues.