Arbitration is a means to resolve a dispute outside of court, through a court-like process with a privately retained decision maker, often a retired judge or experienced family law attorney. It functions much like a court proceeding but affords rapid access and privacy. Since the Constitution guarantees all citizens access to courts for resolution of their disputes, absent agreement, a court cannot order parties to arbitrate a dispute. Parties who participate in arbitration do so by agreement.
In many states, arbitration of divorces is common. It is available, but not routinely utilized in New Hampshire because the family courts are generally inexpensive, easily accessible, and timely. Arbitration is often expensive because the process is privately funded and not part of the court process. It can also be acrimonious, like litigation. However, because it is not part of the court process and is entirely private, it may proceed on a faster timetable. If the parties are able to fund the expensive arbitration process, it can be beneficial for cases plagued by judicial delay or inaccessibility, where extra accessibility to a judicial officer is desired, or to ensure that a divorce case that might not otherwise be sealed by a court (i.e. that of a high profile litigant or public figure) is handled confidentially.