On July 7, 2024, the Uniform Family Law Arbitration Act (“UFLAA”), 42 Pa. Cons. Stat. §§ 7371-7398, became effective. Prior to its enactment, Pennsylvania only had the Revised Uniform Arbitration Act (“RUAA”), which is better suited to commercial and other civil cases and did not address the unique features of family law litigation. Indeed, the RUAA does not require an arbitrator to apply the substantive Pennsylvania laws regarding equitable distribution of property, alimony, child custody and child support. The UFLAA allows for greater flexibility, efficiency, and control by the parties in family law cases.
Imagine a highly contested family law matter involving complex financial issues for equitable distribution and support, and the discovery issues that come with those issues, along with a contested custody issue. Without an out-of-court resolution, this family may be before multiple triers of fact and other court personnel, including a domestic relations officer, hearing officer, discovery master, divorce hearing officer, and elected judge. The parties would have limited control over the court dates their matters would be heard and would be paying attorneys for multiple trips to the courthouse for motions, conciliations, and hearings.
If this same family, instead, selected a seasoned family law attorney to arbitrate their case, the parties would have one trier of fact to hear all of their disputed issues on their timetable. The arbitrator would hold a conference with the attorneys to discuss the scheduling of their various disputed issues, and a mechanism for discovery disputes and motions to be heard along the way. No more waiting around in the hallways of the courthouse or in a packed courtroom for motions court. The arbitrator can resolve discovery disputes and other motions in addition to the ultimate issues in the case. The arbitrator can also conciliate the case—either issue by issue, or wholistically with a discussion of the financial and custody issues altogether.
The arbitrator does not, however, have to hear an entire family law case. The parties can use an arbitrator to resolve single issues as well. Some of the most time sensitive issues that the courts hear are school choice and custody relocation cases. Because it is often preferred to decide school and relocation before a new school year begins, it can be challenging to get a timely court date with the rush of these cases over the summer. As a result, school choice and relocation cases often spill into the beginning of the school year, wreaking havoc for the parents and children to navigate where they live and attend school until they get a ruling from the Court. With an arbitrator, the parties can have their case heard on their timetable and they can even contract with the arbitrator to have a ruling provided in a certain timeframe.
The parties are assured finality with arbitration more so than with litigation. Other than with custody, the only basis for appeal is a violation of due process. With custody, the arbitrator is required to make findings of fact and conclusions of law, which can be reviewed based on the child’s best interest.
Another advantage to arbitration is that it affords the parties more privacy. The public cannot go on the docket and read what has transpired in an arbitration case. Either party can move to seal the arbitration award, which is a right conferred by the UFLAA. Hearings and meetings are held virtually or in the arbitrator’s or attorneys’ offices.
Sometimes, the parties want even more say and control over the outcome of their family law matter and opt instead for mediation. Mediation certainly allows the parties to decide their outcomes through a series of compromises. Mediation is generally less expensive than arbitration because it does not involve litigation. However, not all issues can be resolved through mediation.
Yet another option for parties looking to avoid the courthouse is a hybrid of mediation and arbitration. Parties mediate their case with an eye toward settling the entire matter. If they reach an impasse on one or more issues, just those issues can be arbitrated. As an example, parents successfully mediate most of the issues in their custody matter regarding their five-year-old. They live 10 minutes apart, but in neighboring school districts. They reach an impasse on the issue of where their child will attend kindergarten in the fall. They ask the mediator to decide the school choice issue, now sitting as the arbitrator. To do so, the parties execute a waiver for what now could be considered ex parte communications with the mediator, if the mediator met with one or both parties in a separate caucus.
While family law matters are unpleasant and sometimes traumatic for the parties, arbitration is an option that will at least temper some of the more stressful aspects of the process. The option to mediate and arbitrate further allows the parties to customize the resolution of their case to best meet their needs.
Reprinted with permission from the April 4, 2025 edition of the Lawyers Journal. All rights reserved.
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