Arbitration has become somewhat common in civil lawsuits. With family courts so busy now, it was perhaps inevitable that arbitration would also become promoted in family law.
At the beginning of 2024, Washington State passed the Uniform Family Law Arbitration Act (UFLAA). For the new law to apply to a family law dispute there must be a written signed agreement between the spouses or other parent. The agreement must name the arbitrator or identify a method of selecting an arbitrator. The agreement must also identify the type of family law dispute that is to be arbitrated.
Arbitration is essentially trial by private judge. Arbitration is often favored by businesses since it is expedient, binding, and often final. An arbitrator is empowered to make all the decisions that a judge may ordinarily make during a lawsuit. However, the UFLAA specifically adds limitations to the family law arbitrator’s power. The arbitrator cannot sign final paperwork granting divorce, terminate parental rights, grant an adoption, or issue protection (restraining) orders. Additionally, the UFLAA reserves final authority for child-related disputes to the judge.
The most significant use of arbitrators may be the award of financial judgments to the parties. Child support and spousal support would be the chief issues that arbitration would be best used for. While an arbitrator could still hear child custody, child visitation, or domestic abuse issues, the arbitration may be considered a recommendation by the family court rather than a binding decision for the parties.
What are the Pros of Arbitration in Family Law?
Judges are randomly assigned to hear cases. That judge will not know the parties or the case and may not have expertise in a certain area of the case, depending on the judge’s background. For arbitration, the parties can select an arbitrator that has knowledge of them or has expertise in a given area. For instance, parents can select an arbitrator who regularly works with children or who knows the children involved.
Arbitrations are also more efficient and private than having the court hear it. Most documents filed with the court are publicly available and the case is one of hundreds of cases that the court may be listening to at any given time. In contrast, documents given to an arbitrator are not available online to any curious party and the arbitrator is directly paid to adjudicate the case, leaving more time for the arbitrator to focus on the case for which he or she is hired for.
Finally, arbitration is less formal than a traditional court trial or hearing. In a trial or hearing, the parties and the judge must adhere to all the rules and formalities of such a setting. This may incentive the parties or their attorneys to be more combative. Conversely, an arbitrator is more informal, which may lead to more collaboration than argument to resolve the matter.
What are the Cons of Arbitration in Family Law?
The biggest downside of arbitration is that it can be expensive. The parties are paying for a third party to be a private judge for their dispute. The parties don’t pay a judge because the judge’s salary, staff, and time are paid for by taxpayers of their state. For arbitration, the parties are paying the arbitrator to perform his or her service.
Arbitration in other contexts have the potential to be biased in favor of the financially superior party. In employer-employee lawsuits, there is often the concern among labor groups that the arbitrators will side with the employer because the arbitrator can pay them. That concern is lessened in the family law context since both parties are individual persons rather than large corporations. An abusive spouse may still use the arbitration process against the other spouse. However, the UFLAA reserves the issue of restraining orders and final authority over divorce and child-related disputes to judges.
Do I Need a Lawyer for My Family Law Issue?
If you have difficulty seeing your child as the holidays approach, you should contact a family lawyer today. A skilled family lawyer can answer your questions, provide guidance on your case, and represent your best interests in court.