What Is Family Law Arbitration?

Family law arbitration is an alternative way for families to settle disputes.

Posted on August 28, 2018

Updated on July 13, 2021

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 to decide the outcome of their disagreement. Arbitration is sometimes used in divorce cases to keep both parties out of divorce court.

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. So far only Arizona, Hawaii, North Dakota, and Montana have done so. To find out what family arbitration laws apply in your state, talk to a local legal professional.

What can a family law arbitrator 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 is often 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, issue subpoenas, hear testimony, examine evidence and reach a final decision. That’s 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.

There are several reasons why arbitration is fast becoming the preferred method for resolving many family law issues

It’s private. Materials given to the arbitrator are not filed with the court and hearings take place in private offices instead of 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 that’s convenient for both parties.
It’s less expensive. The parties involved do have to pay for the arbitrator’s time, but they don’t have to pay legal fees for two lawyers.

There are downsides to arbitration

You have 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.

Arbitration is not the same thing as mediation

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. Unlike arbitration, the mediator has no power over 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.