Arbitration is a type of dispute resolution, in which both parties hire an arbitrator (an attorney or a retired judge) to make a decision (an award) on their dispute out of court. People choose arbitration for many reasons; the primary reason is privacy. When a case goes to court, children experience anxiety. This can affect other parts of their lives, including school and future employment. Also, arbitration provides a speedy resolution rather than going through the court system. In 2016, the Uniform Law Commission approved the Uniform Family Law Arbitration Act. This will allow arbitration to be used in family law across the nation.
Prior to this ruling, arbitration was only used for commercial disputes. In 2005, the American Academy of Matrimonial Lawyers (AAML) did draft the Model Family Law Arbitration Act. Although no states enacted the Model Family Law Arbitration Act, the AAML does provide certification for family law arbitrators.
In arbitration, both parties enter through an agreement. This agreement outlines all aspects of the arbitration and states that both parties have waived their right to go to court. All issues (e.g. paternity) must be included in the agreement. Next, the parties hire an arbitrator. An arbitrator has the same power as a judge and can:
- interview a child.
- issue a subpoena.
- appoint an attorney for the child.
- issue a sanction against a party for misconduct during the arbitration.
In Maryland, the District of Columbia and Virginia, an arbitrator can also award temporary child access, temporary spousal support and temporary child support as well as advance legal fees.
The arbitrator must apply the state’s laws to the case. The arbitrator will render his or her decision based on the evidence, and then it is confirmed by the court. If a party opposes the decision, the case will go to court. It is important to note that there are limited grounds to change the award.
The arbitrator must be trained to identify domestic violence and child abuse. If there is suspicion of either, the arbitrator must report it to the authorities and suspend the proceedings. Also, a trial judge can do a judicial review of the case, but only on record — at the arbitration hearing.
Arbitration in family law gives families a way to avoid going to court and it is confidential. It frees up court time and is less expensive. And it’s informal, which will create a more pleasant atmosphere during the hearing.