In July 2016, the Uniform Law Commission (ULC) adopted the Uniform Family Law Arbitration Act (UFLAA). It can now be considered for enactment by state legislatures. Ideally, it will be enacted by all states and the District of Columbia so that there will be a uniform approach to arbitration of family law disputes across the U.S.
These are the key provisions:
Scope. Parties can agree to submit any existing or future family law dispute to binding arbitration, including division of property, a claim for spousal support, custody and child support, a claim of breach of a marital agreement or a dispute about how to implement the terms of such an agreement. A party who entered into an agreement to resolve a future child-related dispute by arbitration is not bound by that agreement unless either he or she affirms the agreement to arbitrate after the dispute arises or the agreement to arbitrate a future dispute was approved by a court order in the prior proceeding.
Applicable law. The arbitrator must apply the same law that a judge of the state would apply. However, as discussed below, an arbitrator’s error of law is an insufficient basis on which to vacate his or her decision.
Protection from abuse. The arbitrator’s qualifications include training in identifying domestic violence and child abuse. If the arbitrator determines there is a reasonable basis to believe a party’s safety is at risk, the arbitrator may not proceed until steps are taken to address the concern. Moreover, the arbitrator must report suspected child abuse to the proper authorities and suspend proceedings. An arbitrator may also make a temporary award to protect a party or a child from “harm, harassment or intimidation” and may impose procedures to protect a party or child from the risk of such conduct.
Powers of the arbitrator. The arbitrator generally has the same powers as a judge, including the power to interview a child, appoint an expert, issue subpoenas, appoint an attorney for a child, compel parties to make discovery and issue an order prohibiting them from disseminating information obtained through discovery, sanction a party for misconduct during the arbitration, and make an award of legal fees and costs. In addition, the arbitrator may make temporary orders to the same extent as a judge of the state. For example, in Maryland, Virginia, and the District of Columbia, where judges can make awards of temporary child access, temporary spousal support, temporary child support, and advance legal fees, the arbitrator would have the same powers.
Judicial review. The trial judge can review a child-related decision, but only on the record made at the arbitration hearing, to determine if it complies with state law and is in the child’s best interests. Court review of other decisions, e.g., a decision about division of property, spousal support, or a claim of breach of a marital contract, is limited to a claim the award was procured by fraud or corruption or other misconduct of the arbitrator. A mere mistake of fact or law on the part of the arbitrator is insufficient.
Transcripts. Except for child-related disputes, for which the arbitrator must make a verbatim record, the parties can opt to dispense with a court reporter and transcripts. This is consistent with the limited judicial review of an arbitrator’s decision; there is little need for a transcript if there is to be no appeal.
Maintaining privacy is one of the reasons some parties choose arbitration over the court process where testimony is in open court and records are public. An earlier draft of the UFLAA would have allowed parties to agree that the arbitration is confidential. That provision was deleted. However, because arbitration is a voluntary process, a party need not agree to arbitration unless the other party agrees to make the proceedings confidential. Under the UFLAA the arbitrator has the power to make orders to carry out such an agreement.
If enacted, the UFLAA will give parties and their lawyers another tool in the dispute resolution toolbox. Because it would allow for arbitration of the full range of issues that are presented at divorce, including child issues, it may make arbitration more feasible for some parties who would otherwise be forced into court. Moreover, parties who have a strong desire to maintain privacy, and who prefer a speedier resolution than they are likely to get from a court, albeit at the expense of a full right to appeal if they are unhappy with the result, may find arbitration a good alternative to going to court.
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