Family law arbitration is an alternate way for families to settle disputes. Rather than going to court and having a judge decide a case, the family members agree to allow a trained, third-party decision maker called an arbitrator to decide the outcome of their disagreement.
Right now, state laws vary when it comes to arbitrating family law matters. The Uniform Family Law Arbitration Act was developed to try to standardize the rules of family law arbitration. The American Bar Association approved the Act, and it has been recommended for enactment in all states, but so far only Arizona and Hawaii have done so. It is essential you talk to a local legal professional to find out what the specific rules for family law arbitration are in your state.
What can a family law arbitrator do and not do?
The types of matters a family law arbitrator might settle include:
- Property disagreements between divorcing couples
- Spousal support or child support
- Custody disputes (varies by state)
Issues a family law arbitrator cannot settle include:
- Granting a divorce
- Granting an adoption
- Granting guardianship or terminating parental rights
If both parties choose arbitration over going to court, they will mutually select the arbitrator. The arbitrator often is an experienced family law attorney or a retired judge. The arbitrator will act very much like a judge during the arbitration process. He or she will have the power to interview children, appoint experts to assist in the case if needed, issue subpoenas, hear testimony, examine evidence and reach a final decision, which is called an “award.”
The big difference between an arbitrator and a judge is that the arbitrator doesn’t have the final authority to enforce the award. Confirmation by the court is necessary, but once the court does confirm the award, the right to appeal the decision is very limited.
Why would family members choose arbitration vs. going to court?
- It’s private. Materials given to the arbitrator are not filed with the court and hearings take place in private offices not the courtroom, which is open to the public.
- It’s faster. It generally takes less time than going through the court system and arbitration hearings can be scheduled at a time convenient for both parties.
- It’s less expensive. While the parties involved do have to pay for the arbitrator’s time, they don’t have to pay the legal fees for two lawyers.
What’s the downside of choosing arbitration?
- The limited right to appeal. If you aren’t happy with the decision of the arbitrator, you won’t have a lot of options.
- It is not an option in many states for granting or modifying child custody.
Is arbitration the same thing as mediation?
No. During mediation there is a neutral third party who listens to each person, summarizes the differing points of views, finds areas of agreement and suggests ways to resolve a dispute. But unlike arbitration, the mediator has no power to decide the outcome.
Finding alternative ways to settle family disputes rather than going to court is a large part of family law. Ideally, families can find ways to resolve their disagreements peacefully and amicably, and in the best interests of any children involved.