Arbitration & Private Judging Overview
Why might you benefit from Arbitration or Private Judging?
Because courts are overwhelmed, unpredictable, time consuming, intimidating and costly. An alternative approach, such as Arbitration or Private Judging returns control over the process, the pace, and the tone, to the parties.
Private judging and arbitration are becoming more common as funding to the courts is cut, courtrooms are closed, State employees are furloughed, the demand for judicial relief grows, and wait times for cases to be heard increases significantly. The "justice system has disproportionately suffered" from budget cuts." Most California courts have been required to operate with fewer staff members, cut hours of operation and close courtrooms.
California's Chief Justice, Tani Cantil-Sakauye, has characterized these cuts as "devastating" and "unsustainable." Although it is only 2 to 3 percent of the state budget, the judicial branch has had a 30 % reduction in its base budget since 2009 and is scheduled for an additional 15 percent cut next year." Further cuts have been proposed for the upcoming fiscal year, and the problem is only expected to get worse.**
Private Judging can help. A Private Judge or arbitrator can hear your case quickly, with less delay and expense for all involved. Contact Us to learn more about our private judging and arbitration services, or visit our Frequently Asked Questions page for more information.
Arbitration is a form of Alternative Dispute Resolution (ADR). ADR is an alternative form of resolving legal matters, and keeping families out of court, which includes Mediation and Collaborative Divorce. Arbitration is used to resolve a broad range of disputes in the American Legal System, as well as internationally. The popularity of Arbitration has grown rapidly, and has become a necessary part of the justice system. Arbitrators make determinations concerning the legal rights of those who engage them in a manner very similar to a judge. Arbitration often permits clients to resolve their disputes more quickly and inexpensively than litigating in court. Instead of judges or juries, arbitrators decide what is fair and lawful, and how to reasonably resolve various disputes.
Arbitration offers you a neutral, third person to hear and resolve your legal dispute, who is selected by the parties or is appointed by the court. The parties present their disputed issues to the Arbitrator, who then issues a ruling in the case, resolving all issues. The Arbitrator's decision may be binding or non-binding depending on the circumstances or agreement of the parties. Binding arbitration is the more common form, because non-binding arbitration leaves the door open for further litigation - something most arbitration clients wish to avoid.
The parties may agree to engage the Arbitrator to resolve all pending disputes between them, or may wish to only resolve a single matter, which is holding up resolution or negotiations on all other matters. In the family law context, this may include a parentage determination, validity of a pre-nuptial agreement or post-nuptial agreement, validity of a judgment or marital settlement agreement, whether an asset is community or separate property, or other similar family law matter.
A private judge performs the same role as a courtroom judge, but instead of being assigned to whomever the court clerk decides, the parties and their attorneys agree upon a judge whom they feel is right for the case. Many people do not realize that judges are often inexperienced in the area of law over which they preside. For example, a criminal law practitioner may be assigned to the family or civil bench. Private judging offers the benefit of pleading your family law matter before a Certified Family Law Specialist, who has devoted her career to this area of law.
At the Law Offices of Russo & Prince, we offer Private Judging in all family law and custody cases. This includes divorce, legal separation, annulment, child custody and visitation, guardianship, parentage and paternity disputes, domestic partnerships, child support, spousal support or alimony, retirement division, property division, interstate custody disputes and requests to move-away with a child, and related family law matters.
Why Family Law Litigants Are Choosing Private Judging
The benefits of private judging, particularly in family law matters, can be substantial. Private Judging frequently reduces the cost of litigation. Although you pay the private judge for her time, you are able to set hearings right away, have your hearings heard immediately, obtain detailed and enforceable orders that are less likely to require modification, and streamline the custody or dissolution of marriage proceedings. You can also have more control over the process, with the opportunity given to modify the traditional proceedings in cases where all parties agree.
The time required to have a matter heard, the accessibility of the judge and her staff, and the flexibility of communication offered by the private judging process can substantially reduce the stress and frustration of this already difficult process. Private judging can also assist litigants who are concerned about protecting their privacy or professional reputation by keeping the most serious allegations and mud slinging out of the court's public file.
How Is Private Judging Different?
In Private Judging, most parties have independent attorneys, and the Judge does not prepare or assist in any of the paperwork. The Private Judge will try to bring the parties to an agreement, but ultimately retains the authority to determine what is best. The Judge hears the arguments and facts presented by each party, considers all aspects of the case and the history of the parties, as well as the needs of any children, and issues a binding order. The parties will be bound by this order just like any other court order, which will be full enforceable by the Court and law enforcement.
This does not mean that private judging clients are prevented from reaching their own agreements without a Judge, and they are encouraged to do so. These private agreements, whether made in Court or with a Private Judge, are called stipulations. Stipulated orders are as enforceable as those issued by a judge.
California Law Allows You To Engage A Private Judge And Stay Out Of Court
The California Constitution grants authority to litigants to take their cases to a qualified attorney or retired judge to act as a Private Judge. When parties agree on a private judge, they prepare a Stipulation for Appointment of Private Judge, which is signed by all parties and counsel, as well as the private judge. This Agreement is then filed with the court, at which time the Private Judge is vested with all of the authority of a judge appointed to a Superior Court, within this specific case. The private judge may choose to accept or decline the appointment, based on her schedule and the issues presented in the case.
Where Can I Learn More?
Visit our Private Judging Frequently Asked Questions page for more information concerning how Private Judging may be right for your family.
** - Judge Richard Loftus, Budget cuts threaten the very existance of the judicial system, San Jose Mercury News, August 16, 2011.