People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?
The Uniform Law Commission is in the midst of drafting a Family Law Arbitration Act designed to provide a structure for arbitration of family law matters. The draft act provides many of the typical characteristics of arbitration that distinguish it from litigation. For example, parties will enter arbitration through an agreement to arbitrate; parties select and hire their arbitrator; arbitration proceedings and awards can be confidential; and arbitration awards are final, with very limited causes for appeal to a court. Family law arbitration differs from commercial arbitration in some key respects, such as greater opportunities for judicial review of awards determining child custody and support.
Family arbitration is quite dissimilar from family mediation. Most importantly, the arbitrator makes a decision that is binding on the parties, as compared to mediation, which is based on party self-determination. Family arbitration, as envisioned in the draft act, also differs greatly from court mediation, which is (with some exceptions) typically mandatory and limited to child-related issues. Family arbitration will be implemented only when the parties enter into an arbitration agreement, will be used in a much more limited number of cases than a court program, and may address a much wider array of issues.
This is not the first look at arbitration in the family law setting. The American Academy of Matrimonial Lawyers drafted a Model Family Law Arbitration Act in 2005 and provides a list of arbitrators who have met their requirements. North Carolina has arguably the most comprehensive family law arbitration statutory scheme in the country, with other jurisdictions, such as Indiana and Michigan also providing for family law arbitration through statute. This is also not a uniquely American idea. For example, there is an English organization called the Institute of Family Law Arbitrators, which is related to the Chartered Institute of Arbitrators, and there is Canadian law that provides for family law arbitration as well.
There are still many interesting issues to be decided. For example, at the March 2015 drafting committee meeting, there was discussion of how arbitration will relate to acts that are solely within the purview of the state, such as dissolution of a marriage.