Arbitration and its relation to family law

Arbitration and Its Relation to Family Law

Arbitration "Wait 'til court and see what the judge decides." Two increasingly popular, alternative dispute resolution methods to the often tension tainted threat, "wait 'til court and see what the judge decides," arbitration and mediation, can currently serve as a remedy to some conflicts in family law, as well as help resolve some litigation shortcomings. Some individuals, however, whether at their worst or best, admit they do not understand the difference between arbitration and mediation. Originally, the Federal Arbitration Act (FAA) constituted a procedural statute designed for commercial arbitration between business entities.

Currently, no matter what the cause of action, when a contract falls within the Commerce Clause's reach, the FAA creates a preference for arbitration over litigation.

States may not carve out areas in which arbitration is thought to be inappropriate or in need of special regulation; any state law that is specifically directed at arbitration, as opposed to contracts generally, is preempted by the FAA. The Court tends to look at arbitration as if it were merely a change of venue, comparable to moving a dispute from Virginia to Maryland Even if the arbitration clause is contained in an adhesion contract, it must be enforced unless it can be invalidated under general principles of state contract law. With the support of this legal framework, banks, insurance companies, phone companies, Internet service providers, e-commerce merchants, and sellers of consumer goods and services routinely include mandatory arbitration clauses in their standard-form contracts.

Arbitration in family law, however, is not mandatory. As this paper addresses the issue of arbitration in the family law sphere, it purports to determine when and how arbitration should be used in the family law scheme. It also considers whether it is advisable to utilize arbitration in family law scenarios.

When parties elect to use arbitration in family law cases, an attorney represents clients and acts as an advocate for his/her client, as he/she presents the client's case to an arbitrator, rather to a judge at trial.

In this alternative to having a judge decide their case in court, both parties "select a neutral lawyer" to represent them. Arbitration presents a positive alternative to parties involved in family law disputes as it can shorten the delay in securing a resolution, decrease time hassles and lower expenses accompanying a trial. In one sense, arbitrators, basically similar to a judge, make decisions about evidence and present written opinions, which may be binding or non-binding. At times, arbitration is performed with one arbitrator [may or may not be lawyer], however, usually each side selects an arbitrator and then in turn, the two chosen arbitrators select a third arbitrator. "The dispute is then presented to the three arbitrators chosen, with a majority of the arbitrators rendering a written decision." In addition to "arbitration's relative informality and substantial limitations on discovery and the right to appeal, which generates savings in both time and cost," another perk in arbitration is the fact that representing attorneys need to possess more knowledge of their case when launching or preparing to defend it than usually required to know during a lawsuit's early stage. "In litigation, by the time the attorneys select the jury, they have generally lived with the case for years."

In arbitration, albeit, the arbitrator selection process begins with the administrative conference, right after the case is filed.

Depends on

During this conference, both parties' counsel may tell the case manager they kind of they prefer on the list of potential arbitrators. Arbitrator preferences may include:

Male or female;

young or old;

experienced or inexperienced;

employed (full time or part time) or retired; a lawyer or non-lawyer."

If an arbitrator is not a lawyer, he/she may be "an accountant, business person, or technical expert."

He/she may also be an "in-demand" arbitrator, juggling a full calendar or an arbitrator free to accept a case immediately; "an entrepreneurial or 'establishment' type of person; a naturally bright high achiever or a serious hard worker; or a proactive or laid back individual." To help ensure arbitrators are qualified and sympathetic, representing attorneys need to understand their clients' personalities, their strengths and weaknesses and their chain of logic as well. "The ideal arbitrator always depends on the particular case."

Mediation in mediation, albeit, a single mediator usually conducts the dispute, but s/he does not judge the case, but instead, helps facilitate a discussion and eventual resolution of the parties' case. In Florida, which currently reportedly leads in mediation implementation of mediation, most lawsuits must be mediated before a court will allow the parties' dispute to be scheduled on the trial calendar.

Voluntary mediation may be employed to settle any kind of dispute and can evade a lawsuit or judge-ordered mediation. Pre-suit mediation, currently becoming a more accepted way to sensibly resolve disputes, abort the threat of litigation and are confidential and non-binding. Compared to litigating a lawsuit, mediation can serve as a relatively quick and inexpensive alternative. In Florida, mediation reportedly reduces the courts' trial dockets and effectively resolves approximately 75% of cases. Part of mediation's success rate evolves from parties being brought together in a neutral environment to confidentially present their case to a mediator, a neutral third party. After hearing all sides of the story, a mediator then attempts to "limit the issues and put them in perspective."

Traditionally, mediation has been used in family law situations. Unless one of the parties files a lawsuit requesting the court to enforce it, however, a court will not enforce a private mediation or an arbitrator's decision. The court will, however, enforce a signed mediation agreement.

Ways arbitration and mediation are similar include:

Both serve as alternatives to litigation, or sometimes are "used in conjunction with litigation to attempt to avoid litigating a dispute to its conclusion."

Arbitration and mediation both employ a neutral third party.

Arbitration and mediation may be binding; albeit, parties traditionally employ mediation "as a non-binding procedure and arbitration as a binding procedure."

Compared to Going to Court

Compared to having a dispute settled in court, arbitration is:

Fast: With the over-crowded court system and not enough judges, it may take months for a case to secure a scheduled trial date. Mm Arbitration, on the other hand, can proceed whenever parties, attorneys and arbitrator are ready and to schedule meetings.

Convenient: Parties and attorneys elect to schedule arbitration for mutually agreeable times, not an option for trials.

Private: Unlike hearings in open Court, on the record with spectators, arbitration occurs in an attorney's conference room, without spectators. With exception of "custody, parenting time and support issues, which must be recorded," unless participating parties decree otherwise, the proceeding occurs "off the record."

Informal: In trials, particular procedures and rules of evidence must be adhered to, while in arbitration, parties set their own rules, usually much less formal than a trial.

Flexible: Participating parties may choose particular rules to apply, limit issues the arbitrator can decide, as well as range of options arbitrator must choose from. A judge maintains control at a trial.

Inexpensive: As arbitration requires less time than Court hearings, any extra costs paid to an arbitrator is offset by attorney's fees charged while attorney waits in Court.

A dispute that might require a weeklong trial can generally be arbitrated in one day. A motion at court that takes 2-4 hours might be decided in 1/2-hour to 1 hour in arbitration.

Finality:

Grounds to appeal the decision from arbitration are more narrow and limited than appeals regarding the decision a judge makes. Consequently, arbitration more likely aborts the litigation process.

Challenges in Arbitration

An individual cannot arbitrate unless both parties agree to the process.

A person relinquishes his/her the right to veto any settlement proposals.

A mediator cannot force a person to accept a particular settlement offer, however, an arbitrator can. On the other hand, this may constitute an advantage, as the opposing party likewise relinquishes his/her right to veto settlement proposals.

Grounds to appeal an arbitrator's decision are restricted; consequently parties will most likely have to live with the arbitrator's decision. This, albeit, could be conceived as positive as neither party will be threatened with the prospect of a trial.

A party may have to attend Court; however, to enforce the decision if one refuses to abide by the arbitrator's decision, also true if after a trial, a party does not adhere to Judge's decision.

A person has to pay the arbitrator, not a judge. Traditionally, parties split the arbitrator's fee, however this is open. Although arbitration may add up to be more expensive than a prompt, winning negotiated settlement, it will likely "be less expensive than a protracted negotiation or mediation, and certainly less expensive than a trial."

The following figures (1 & 2) reflect differences between a mediator/mediation and an arbitrator/arbitration.

Figure 1: A Mediator Compared to an Arbitrator

Figure 2: A Mediation Compared to an Arbitration

Figure (3), which follows, relects advantages and disadvantes of arbitration.

Figure 3: Advantages & Disadvantages of Arbritation

During this paper's next section, considerations related to family law, along with specifics related to several cases are presented.

Considerations

Stress and grief can make it hard to reach sensible decisions."

The Issue of Arbitration in Family Law

Family Law frequently involves the lives of children, and includes requirements that continue after the case decision is made. It often requires ongoing contact between parties. In addition, "marital and family law takes place in this heightened emotion atmosphere that is not present in other litigation," West notes. "The Family Law Section's 'Bounds of Advocacy' handbook is proving to be a legal best-seller in Florida, albeit a free one," the Florida Bar New Reports. Richard West, immediate past chair of the section, states, "The general thrust of it is that marital and family law is different from other forms of litigation, and it needs to be handled differently."

West contributed to assembling the handbook and works regularly to distribute it. The handbook West distributes consists of a recognition that minimum standards of ethical conduct in Florida Bar rules are not sufficient for many family law cases. In family law, West admits, it is possible: "for a litigant to win the legal battle, but lose the emotional and financial war."

As this paper addresses the issue of arbitration in the family law sphere, it purports to determine when and how arbitration should be used in the family law scheme. It also considers whether it is advisable to utilize arbitration in family law scenarios.

Family Law

Family law is that branch of the law of consisting of the substantive and procedural rules that regulate the creation, ongoing relations, termination and post-termination consequence of family relationships, and the legal rights, privileges, and restructurings pertaining to such relationships. Direct regulation of family relations (e.g., rules governing marriage, paternity, adoption, child abuse and neglect, divorce, custody, support, etc.) are the major focus of law school courses and of most families fall practice. However, indirect family regulations arise in virtually all other subjects in the law school curriculum also. The addition of the "family factor" to otherwise normal problems of property, evidence, tort law, etc., often create a new, hybrid dilemma in which the family policy issue may overshadow the issue tort, evidence, or property law, etc. Historically, the primary focus of state family law of regulation has been (and still is) upon the nuclear family, through the regulation of relations between persons in analogous relationships such as the extended, quasi-, and alternative-families are increasingly being discussed in the literature and a rising in the cases.

In family laws in the United States, no such thing as "THE family law of the United States of America," exist. Instead, two [state; Federal or 52, depending on a person's perspective] sets and systems of family law in the United States. These sets and systems greatly differ from each other in substance, procedures and structures. "No state law entirely independently." Currently, in regard to arbitration in the family law sphere, the following family law matters may be custody, support, divorce, alimony, property division.

What the American Family Needs?

After investing10 years into a study, however, the American Law Institute determined the modern American family "needs a more modern divorce law."

The American Law Institute issued recommendations that cover concerns such as child custody, child support, alimony, legal rights of gay couples, and parents who choose not to marry.

On November 15, 2007, in another report compiled by Dr. Carol Coulter, a journalist, cites cases before the family law courts and revealed that "domestic violence accounts for almost half of all cases dealt with by the Family Law courts." During the course of this study, approximately 10,000 domestic violence cases were heard in court in one year. "Another quarter of the 20,000 family law cases last year involved custody battles over children. On some days, a judge anonymously stated in the report, due to the high caseload, "as many as 70 different family law cases could be listed in a single court for the same day. This, "the judge states, "often means that cases have to be adjourned and many are not given adequate time."

As the judge stressed: "This is not a satisfactory service where the organization of people's lives and the welfare of their children is at stake."

Other points noted by a report called Family Law Matters, released by the Courts Service, include:

Almost 10,000 domestic violence cases were heard in total.

20,900 family law applications in the district courts in 2006.

Of these, some 5,027 were for custody and access to children, of which 3,453 were granted. Another 1,417 were struck out or withdrawn, while just 157 were refused.

Of 1,742 applications for guardianship from unmarried fathers, 1,268 were granted, 432 struck out and just 42 refused. There were 9,924 applications under the Domestic Violence Act.

These included 605 barring order applications, of which 544 were granted.

In one custody case, a woman in a relationship with a man listed as ar egistered sex offender and regarded as a paedophile by gardai, resulted in the woman's estranged husband and her parents receiving joint custody of the woman's son. "The grandparents had to give an undertaking not to have any contact with their daughter or her current partner." In another case, a man's ex-wife, who left the country with another man, was ordered to pay the father of their children E300 a week for the maintenance of the children. In yet another case, a woman in her mid-70s obtained a barring order against her husband, who was reportedly violent and mentally ill.

In case after case in family law, raw emotions erupt in overcrowded courtrooms. Lynn Bodi, an attorney, notes that the definition of "family law" is currently expanding to match the peculiar composition and actions of families. Bodi als notes that in the past, family law did not focus on children as much as it currently does. Bodi refers to "family law" as "un-family law," noting this it is heavily involved with divorce, restraining orders, abuse, and alimony. Bodi cites the following family law scenarios for considerations.

A couple fights for visitation rights after the parents of their grandchild divorce. Brothers are placed into foster care, after accusing their adoptive parents of abuse. The love of a foster mother and special needs child clash with a tribal court's desire to have the child grow up in an Indian home.

A father refuses to relinquish parental rights, even though he's not involved in his child's life.

Before a baby girl dies of injuries from a beating, her liver is donated to save another child. No parent is present to give consent.

A woman seeks custody of her grandson. A lesbian seeks visitation rights to her ex-lover's daughter. An infertile couple seeks a surrogate to carry and deliver a child.

Bodi and her four colleagues, who operate the Law Center for Children & Families, focus of bringing families together, as well as helping components part more peacefully. They note the definition of "family" is expanding, which can complicate work in family law.

Custody and Support

In binding arbitration, one type of alternative dispute resolution (ADR), "a neutral third party resolves the issues in the case and the parties agreed to be bound by that decision. Binding arbitration is commonly conducted and other types of civil cases, however, because a court has an independent duty to determine what is in the best interest of a child, and arbitration award can not be binding in a case involving custody, visitation, or support."

Divorce Even though only a court can grant a divorce degree, a number of couples who are separating and/or divorcing prefer to keep their dispute out of court as much as possible. Consequently, "because arbitration is more private and confidential than court, parties often feel more comfortable using the arbitration process to settle their marital disputes rather than airing them in open court."

Generally, a family law case is handled by one arbitrator. However, if the arbitration will involve particularly complicated issues, the parties might want to have three arbitrators rather than just one. Although having more arbitrators increases the cost of the arbitration, the parties might benefit from having arbitrators with different backgrounds. For example, if the financial issues in a divorce or separation include complex real estate or business issues, a panel of arbitrators might be made up of a family law attorney, a real estate or business expert, and a lay person. Such a make up would give the panel the expertise that might be necessary to understand specific complicated issues while at the same time allow for a balance of viewpoints.

Arbitration's Flexibility

The fact each arbitration can be structured to accommodate each case's issues also makes it preferable to court for some individuals.

After an arbitrator makes his decision, he/she issues a written decision "that will make findings of fact and decisions, based on those facts. In Colorado, even when the parties have agreed to arbitrate their family disputes, either party can ask the court to hold a new hearing, called a de novo hearing, regarding child-related issues within 30 days after one arbitration award is issued."

Traditionally, arbitration awards cannot be overturned unless it is proved the arbitrator practiedc certain bad acts. except in cases where you are entitled to a de novo hearing on child-related issues.

Michigan Supreme Court

On December 28, 2005, the Michigan Supreme Court (Opinion No. 127767) reversed the decision of the Michigan Court of Appeals in Miller v Miller.... In reversing the court of appeals, the Court ruled that the Domestic Relations Arbitration Act does not require."..the formality of a hearing in arbitration proceedings..." And that "[a] procedure by which the arbitrator shuttles between the parties in separate rooms questioning and listening to them satisfies the act's requirements of a hearing." The Court continued in its ruling that."..no written agreement beyond the order for binding arbitration is required (1) if the parties stipulate to entry of the order and the order meets the criteria of MCL 600.5071 and MCL 600.5072(1)(e), and (2) if the parties satisfy MCL 600.5072(a) to (d) on the record." The Court reinstated the arbitration award issued by the arbitrator and the judgment of divorce entered by the trial court.

After the court adjudicates the divorce proceeding?