Upon recommendation from my attorney I opted to use mediation/arbitration for my divorce. Although she was mutually agreed to and we split the cost, it was apparent from the onset that she was biased to the other side. She refused to consider any evidence that was contrary to her determination, was uneven and prejudicial in her interpretation on points of law and clearly demonstrated a bias toward the high wage earner through her failure to even discuss or consider issues raised. Going so far as to gloss over and ignore significant and clear contempt of existing temporary orders.
These biases are pretty obvious in the official documents. If she had been willing to consider both sides equally the outcome would have been different. What recourse do I have, if any?
The first question is was it a mediation or an arbitration. if it was an arbitration, was it a binding arbitration? If it was a mediation, you are not required to agree. If it was non-binding arbitration, you may appeal.
The information is for general information purposes only. Nothing stated above should be taken as legal advice for any individual case or situation.
Take a long and close look at you r contract for the neutral's services. In most circumstances, there is no recourse against the neutral.The neutral did not have any powers except those you agreed to.
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Financial Markets and Services Attorney
First, there are two major questions that must be asked first:
1. Did you participate in an arbitration or mediation?
2. Was the arbitration or mediation, binding or not binding (generally by agreement or by court order)?
While not an impossibility, mediation is usually non-binding on the parties through the use of a third party neutral (mediator) to aid the parties in reaching a settlement by assisting the parties to find points in agreement and hopefully find a fair result - while obviously not always the case, think of it as helping to find a middle ground. Arbitration on the other hand, is usually binding on the parties (but not always) and is considered quasi-judicial where the neutral arbitrator (or panel of arbitrators) is following the of agreement to arbitrate (or certain obligations to arbitrate), including the rules and procedures of the forum selected, and makes substantive rulings and determines the final outcome of the dispute based on the evidence, relevant law or principles of equity.
For purposes of going into further discussion, however, I will assume a hypothetical binding mediation or arbitration (as I do not know you circumstances). Thus, without getting into the benefits, or detriments of arbitration vs. mediation vs. litigation, the next questions generally focus on (1) the liability of the mediator or the arbitrator and (2) the ability to overturn a binding arbitration or mediation. First, the liability of neutrals (arbitrators and mediators) generally depends on the state law, but courts and most state statutes and case law provide "near" absolute immunity from liability for arbitrators, but the states tend to vary as to mediators. Again generally, arbitrator liability tends to focus of failure to perform - failure to make a determinations rather than failure to make the "right" determination under the view that such forums are quais-judicial and thus some form of judicial immunity extends to the arbitrator(s) and the organization providing such service.
However, the liability or immunity of mediators is not quite as simple. While in all cases, I highly suggest you consult with an Oregon attorney to assist you in analyzing your rights, the liability or immunity of mediators in Oregon. Most states have statutes, court rules , or case law creating immunity for mediators to insulate them from most, if not all, civil liability for wrongdoing during
the mediation. However, depending on the state (i.e. Oregon, California, etc.) such may not necessarily stretch to the bounds of "near" absolute immunity provided to judges, arbitrators, etc. but may provide for potential liability for actions caused by acts or omissions in bad faith, malicious intent or willful, wanton disregard. Such acts or omissions are generally hard to prove and as discussed below, it is an uphill road to demonstrate by the record.
Finally, the final issue relates to vacating a binding an arbitration or mediation award. By way of example, the FAA provides that a US court may order an arbitration award to be vacated if: (1) procured by corruption, fraud, or undue means; (2) evident partiality or corruption in the arbitrators; (3) where the arbitrators were guilty of misconduct in refusing to postpone (after sufficient cause shown), refusing to hear pertinent and material evidence, or misbehavior prejudicing a party; or (4) where the arbitrators exceeded powers to the extent of failing to make a final, definite award (e.g. violated agreement/contract). This is an extremely uphill battle, the courts rarely want to disrupt the perceived benefits of arbitration by upsetting arbitration awards. Further, courts will generally look primarily to the record and providing significant deference to the judgment of the arbitrator and not retry the case.
While the foregoing provides an overview, I cannot stress the need for you to review your options with local Oregon counsel familiar with arbitration, mediation and family law/divorce.
This answer was provided for general informational purposes only, and should not be construed or interpreted as providing legal advice or as creating an attorney-client relationship. I am licensed in the State of California. The law in your state may differ and your best answer will always come from a local attorney in your state that you meet and discuss the important facts related to your particular matter.