Alternative dispute resolution embraces a variety of processes designed to resolve legal disputes outside of a formal court proceeding. One such option is binding arbitration. In binding arbitration a neutral decision-maker, who could be a retired judge or a lawyer with expertise in the subject matter of the dispute, is appointed make a decision to resolve a legal dispute. Arbitration has been used for many years to resolve commercial, construction, labor, and many other types of legal disputes. It is rare in the family law arena, but that could change.
The Uniform Law Commission (ULC) is currently working on a Uniform Family Law Arbitration Act (the UFLAA). It will be presented to the Commission at its annual meeting in the summer of 2016. If the ULC adopts it, it can be considered for enactment by state legislatures. Ideally, it would be enacted by all states and the District of Columbia so that there would be a uniform approach to arbitration of family law disputes across the United States.
There are a variety of family law matters that may be appropriate for arbitration:
Binding arbitration has not generally been considered suitable to resolve disputes about custody or support for a minor child. Courts in Maryland, Virginia and D.C. have permitted parties to arbitrate such disputes, but the court retains ultimate authority over these matters. As a result, for most such disputes, it will make more sense for parties who are unable to settle through negotiations or mediation to take their dispute directly to court, without going through arbitration first, only to have the dissatisfied party seek to start over in court. The draft UFLAA provides a set of ground rules that would permit arbitration of child issues.
Some marital agreements provide for binding arbitration of a dispute that may arise in the future. However, parties who do not have a contract with a binding arbitration clause can agree to go to arbitration after a dispute arises. In either case, binding arbitration is voluntary, meaning that a party cannot be forced to arbitrate a dispute unless he or she has agreed in writing to do so.
There are pros and cons to binding arbitration. Some of the benefits include:
There are disadvantages as well:
The draft UFLAA draws on earlier uniform arbitration acts created for business disputes, but seeks to provide a framework that is appropriate for the resolution of family disputes, especially in its treatment of child-related issues and domestic violence. Some of the key provisions are:
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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