Dear wif-ga;
Thank you for allowing me an opportunity to answer your interesting
question. As my clarificaiton request suggested, If you like, I can
give you some added information based on where your divorce is/was
being handled (and I'll touch on this again toward the end), but the
arbitration/mediation/ARB-MED process is very similar regardless of
where you are in the US. Becasuse of this I am going to go ahead
answer your question and you may ask additional questions through the
clarification process if you need to do so.
The questions you have posed do not necessarily have “black and white”
answers. A lot depends on the circumstances involved. Let’s first talk
briefly about the difference between various kinds of arbitration and
mediation:
AN ARBITRATOR resolves the divorcing parties’ matters FOR them. While
the arbitraror might try to convince the parities to agree to certain
issues that he/she know, through experience, are futile to argue,
he/she plays no role in mutual resolution.
You see, an arbitrator can be compared to a hired judge and he/she is
often a matrimonial lawyer or retired judge. An arbitrator hears both
sides of the story in much the same was as a judge, except you don’t
have to physically go to court. An arbitrator’s decisions are also
like that of a judge; his/her decisions can range from that which is
amicable to one or both parties to that which amicable to neither
party. There are two types of arbitration orders:
BINDING: parties are usually bound by binding decisions unless you can
prove the arbitrator was not impartial, made a gross error of law or
exceeded his authority as an arbitrator. Otherwise an arbitrator’s
binding decisions cannot be appealed.
NON-BINDING: a non-binding decision can be appealed, but if on appeal,
the same decision results or proves more favorable to the other spouse
that the original decision did, the spouse who appealed may be ordered
to pay the other's legal costs.
If you utilized the services of an arbitrator, a copy of the final
decision, which is usually filed with the court about two weeks of the
last hearing, is normally mailed to both parties. It might not be a
defense (and certainly not an issue of appeal) that you didn’t receive
a copy of the final decision from the arbitrator but it would
certainly give rise to the notion that the final decision was never
filed or was lost or perhaps filed incorrectly.
A MEDIATOR helps resolve the divorcing parties’ matters WITH them.
His/her job is to help the parties avoid a nasty, protracted divorce
and to settle their own disputes thus moving toward and reasonable,
uncontested settlement beneficial to everyone involved.
Unlike an arbitrator who renders the final judgment in the case, a
mediator, on the other hand, is usually a professional hired in lieu
of two adversarial attorneys, whose sole purpose is to help both
parties settle their own divorce agreement to their mutual
satisfaction. Nothing the mediator may say or do in the course of
negotiation is binding unless both parties agrees to the arrangement,
sign it and send it before the court as a mutually amicable agreement.
ARB-MED is a situation where the arbitrator temporarily acts a
mediator to help resolve the matters of the divorcing party to their
mutual satisfaction on matter where they can agree, and then dons the
hat of authority and renders a decision on the remaining issues that
could not be mutually agreed to. This works for some people who are
seeking to avoid protracted and expensive litigation, but as with some
mediators it opens the door to claims of bias so it is not for
everyone, particularly if the divorce is a complex one or an unusually
nasty one. The answers to your questions would likely vary depending
on the amount of authority the arbitrator had. Routinely however when
the third party moves from mediator to arbitrator the rules are much
the same as those of the exclusive arbitrator and his/her decisions
are binding as long as he/she is acting in the capacity of an
arbitrator, not a mediator, at the time of the decision.
Having said that, in order to provide an answer we should address the
second question first:
“Is my divorce final if the Pet has asked for reconsideration and it
has been granted and not heard?”
In most cases when an arbitrator is used, once all matters related to
legal (but not necessarily mutually amicable) resolution have been
addressed in a manner SATISFACTORY TO THE COURT the papers are filed
with the court and the divorce is finalized for all legal and
practical purposes. It does not, however, need to be mutually
amicable. In fact, just like actual divorce court, both parties may
have some issue with the arbitrator’s final decision.
In your initial statement leading up to your question though I noticed
that you said, “No final orders has taken place. Pet. attorney keeps
using Med/arb agreement for filing motions, but I don't think it is
final order.”
If this is the case and you are certain of it, then NO, the divorce is
probably not final and the process is not yet over with. As such,
final orders to pay support are not enforceable orders of the court –
at least not yet – unless they specifically state that, as a matter of
separate maintenance one party should financially support the other
during their separation pending the final disposition of the petition
for divorce.
Now, if the parties utilized a mediator, came to a mutually amicable
agreement, and signed the settlement, which was then forwarded to the
court for disposition, then YES it is possible that the divorce is
final. If not, then NO, it is unlikely that the divorce has yet to be
finalized. On the other hand, if no mutually amicable agreement could
be reached and one or both parities abandoned the negotiation, is
possible for one party to have proceeded in the absence of the other
and petitioned the court for a divorce. If, as in this case, the
respondent failed to appear or participate in the legal process, then
it is possible that a divorce was granted to the petitioner by
default, in which case it very well could be final given this
scenario.
As you can clearly see, the questions you have posed are difficult to
answer. With that in mind, let’s address your first question in which
you ask:
“If child support is a part of the med/arb agreement is this a signed
order and enforceable by the courts?”
The answer to this question depends largely (but not entirely) upon
how the question we just discussed is ultimately answered. Assuming
that the a mediation or arbitration agreement WAS entered and the
divorce IS final as discussed above, then YES, the child support
arrangements contained in that agreement would indeed be enforceable
by the court unless there is sufficient reason to appeal (mentioned
above). In fact, depending on the final agreement, the negotiation
results and other circumstances the court MIGHT also award one party
arrearages (back pay) for separate maintenance (support due to one
party by the other during the time of separation while the divorce was
pending). The bottom line here is that once the settlement is mutually
amicable and everything agreed to, the divorce decree is normally
automatic.
If you would like me to give you some contact information where you
can verify if your divorce is final or not I’d be happy to provide
that for you. Just let me know where the divorce was
mediated/arbitrated and in what county AND state the divorce would
have been filed. If you need this information I can point you to
sources that can tell you beyond a doubt if the order has been signed
and if your divorce is final.
I hope you find that that my research exceeds your expectations. If
you have any questions about my research please post a clarification
request prior to rating the answer. I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga
INFORMATION SOURCES
EQUALITY IN MARRIAGE INSTITUTE
http://www.equalityinmarriage.org/wdarb.html
DIVORCE HELPLINE - MEDIATION
http://www.divorcehelp.com/mediation.html
DIVORCE HELPLINE – ARBITRATION
http://www.divorcehelp.com/arbitration.html
WHAT IS DIVORCE MEDIATION?
http://www.divorcecentral.com/legal/legal_answers_2.html#Mediation
WHAT IS ARBITRATION?
http://www.divorcecentral.com/legal/legal_answers_2.html#Arbitration
LAWYERS.COM - ARBITRATION AND MEDIATION
http://www.prairielaw.com/articles/article.asp?articleid=1557&channelId=26
(Excellent article on these issues)
SEARCH STRATEGY
SEARCH ENGINE USED:
Google ://www.google.com
SEARCH TERMS USED:
DIVORCE ARBITRATION
DIVORCE MEDIATION
DIVORCE ARBITRATOR
DIVORCE MEDIATIOR
US DIVORCE LAWS
STATE DIVORCE LAWS
ARBITRATOR BINDING ORDER
ARBITRATOR “NON-BINDING”
ARBITRATOR BINDING AGREEMENT
ARBITRATOR BINDING SETTLEMENT
ARBITRATOR COURT ORDER
MEDIATOR BINDING ORDER
MEDIATOR “NON-BINDING”
MEDIATOR BINDING AGREEMENT
MEDIATOR BINDING SETTLEMENT
MEDIATOR COURT ORDER
Alternatively used the term “ARBITRATION” and “MEDIATION” in the place
of search terms “ARBITRATOR” and ‘MEDIATOR”. |
