The Family Law Arbitration Act Drafting Committee had a productive meeting in Chicago in March 2016 and a follow-up conference call in early April. The Act, which will be up for a final reading at the 2016 Annual Meeting, has undergone significant changes in the past year. As currently drafted, the Act tracks the Revised Uniform Arbitration Act (RUAA) in many respects but diverges from the RUAA in key areas that distinguish family law arbitration from commercial arbitration. These include standards for arbitration of child custody and child support, protections for victims of family violence, provisions for temporary awards, and provisions relating to post-decree modifications.
In response to concerns expressed by various commissioners and outside groups, the Committee strengthened the role of the courts in cases involving children and in disputes in which domestic violence is present. In particular, in order to confirm an arbitration award determining child custody or child support, the act now requires that a court find that the award complies with applicable law and furthers the best interests of the child. A verbatim record must be created for any part of an arbitration hearing addressing child-related issues, and the arbitrator is required to provide a statement of reasons for the award. In addition, a bracketed provision is now in the act authorizing discretionary de novo review of awards determining child-related disputes. Further, if domestic violence is evident between the parties in a dispute that is subject to arbitration, a court must decide whether arbitration may proceed. Finally, a mechanism for excluding child-related issues from arbitration altogether is available under the act.
The Drafting Committee has also addressed the question of preemption under the Federal Arbitration Act by adopting the language of the FAA and the RUAA regarding the validity of arbitration agreements. In particular, the Act no longer prohibits pre-dispute agreements except for agreements concerning child-related issues. As under the FAA and the RUAA, ordinary contract defenses (lack of voluntariness, fraud, duress, etc) remain available to challenge the validity of an arbitration agreement at the time of enforcement.
Other changes include unique provisions for arbitrator qualifications and arbitrator powers. In the family law world, parties often prefer that a seasoned family law practitioner or retired family court judge serve as arbitrator. For certain issues, however, parties might seek out a business valuation specialist as arbitrator. The act provides flexibility in this regard and gives parties the right to waive certain general requirements by agreement. Also, the act recognizes arbitrator powers particularly relevant to the family law realm, such as the power to appoint a representative for a child.
After three years of drafting, the Committee remains enthusiastic about the project. We believe the act will provide needed guidance across the United States for this growing form of dispute resolution.
Barbara A. Atwood, Chair, Drafting Committee on Family Law Arbitration Act