The Family Law Arbitration Act Drafting Committee, now in its third year of drafting, remains enthusiastic about the project. The use of arbitration at divorce is on the rise across the U.S., but most states haven’t enacted legislation addressing the unique features of this form of dispute resolution in the family law context. We believe our timely project will fill a real need and will provide beneficial uniformity.
The Drafting Committee is well aware of the hostility that many people hold for “voluntary” binding arbitration when it is misused in consumer contracts, employment contracts, and other contracts of adhesion. Family law arbitration is a different creature altogether, with benefits that may be particularly valuable to disputants in family court: privacy, informality, speed, and the ability to select an expert decision-maker. In contrast to the criticism often aimed at commercial arbitration, there is no built-in bias favoring one party over another in family law arbitration. Still, arbitration does entail a waiver of the right to litigate one’s dispute in court. We need to ensure that any enforceable agreement to arbitrate a family law dispute is based on a truly voluntary and informed decision.
Three primary concerns emerged during the reading of the family law arbitration draft at the 2015 ULC Annual Meeting: the potential preemptive effect of the Federal Arbitration Act, particularly with respect to the draft’s imposition of special requirements on family law arbitration agreements; the resistance to arbitration of child custody and child support that exists in many states, through court decision or legislative enactment; and the failure of the draft at various points to track the Revised Uniform Arbitration Act. Over the course of our most recent drafting committee meeting in early November 2015, the Committee agreed on changes in the draft to address these concerns while also keeping our focus on the over-arching goal of producing an act that is enactable.
Because the general exclusion of pre-dispute arbitration agreements would pose preemption problems and would be inconsistent with existing state law on arbitration, we decided to confine the prohibition of pre-dispute arbitration agreements to agreements concerning custodial responsibility and child support. For purely financial disputes between parties, we concluded it was better policy to provide a mechanism for challenging pre-dispute agreements at the time of enforcement rather than barring such agreements altogether.
In addition, the Committee decided not to retain a list of caveats that would be required in every arbitration agreement but, instead, chose to reframe the caveats as factors that a court may consider in determining whether an arbitration agreement is informed and voluntary. As to child-related awards, we made changes in the draft’s provisions on judicial review of child custody and child support to adopt a formulation of the best interests standard that appears in several states’ arbitration laws. Among other revisions, we also reworded certain procedural sections to more closely conform the draft to the RUAA. We may provide a model family law arbitration agreement in the commentary, building on a new procedural rule and model agreement that the New Jersey courts recently promulgated.
The next drafting committee meeting is scheduled for March 18-19, 2016. We will finalize a new draft several weeks before that meeting date and will post it on the ULC website. We encourage commissioners who have comments or suggestions for the Committee to send them to the Reporter, Professor Linda Elrod, at firstname.lastname@example.org or to me at email@example.com.
Barbara Atwood, Chair, Drafting Committee on Family Law Arbitration