Family law litigation has always felt to me like a square peg/round hole situation, at least as far as trying to shoehorn divorce cases into our civil court construct.

As I was pondering this particular problem the other day, I began to think that it was really more of a dodecahedral peg/round hole issue (for those keeping score at home, a dodecahedron is any polyhedron with twelve flat faces, which simply reaffirms my decision to go to law school so I wouldn’t have to do math).

What I mean is that family law cases are so multi-dimensional — in terms not just of the variety of legal issues we must resolve but also of the emotional and psychological landscape we must resolve them in — that applying one rigid system to this multi-verse of dilemmas feels like an exercise in futility. It is no wonder that complex family law cases can take years to conclude, may require multiple non-legal experts to chime in, and end up costing potentially hundreds of thousands of dollars to resolve, if not more.

It is no wonder that complex family law cases can take years to conclude, may require multiple non-legal experts to chime in, and end up costing potentially hundreds of thousands of dollars to resolve, if not more.

And the situation is no less awkward for what I would consider the most straightforward of cases, with either no significant custody or financial issues, or cases where both parties agree on a majority of the deal points. Those families must still navigate the civil courts, often without legal guidance. Those cases can end up stalling for months or years, too.

And now COVID-19.

Still COVID-19.

Another court closure here in California may be on the horizon, and we’re still trying to dig out of the last one.

For the family court, delays may pile on top of delays, and complex cases that may have already been looking down the barrel of a two or three-year lifespan are facing multiples of that timeframe. Simple cases face more delays, too. All of us want life to return to normal, all of us want to keep moving forward. But how do we keep moving forward when even our best scenario cases take years to resolve in the family court and people cannot get their marital quandaries worked out?

Arbitration is a potential answer.

Arbitration was introduced as an option (mostly in a commercial context) many years ago as a way for parties in a dispute to avoid the necessity of a formal lawsuit. Arbitration as a dispute resolution tool has been used in family law cases, too, though it is not what I would consider widespread. That needs to change.

In arbitration, the parties get to choose their arbitrator (probably somebody with special skill or knowledge in the field, but not necessarily a lawyer), and they get to choose the rules that apply. They can recreate what they’d likely see in court with the application of civil procedure rules, evidence code rules, and any other set of laws that they wish to apply to their case. Or they can go the opposite direction entirely — no real rules other than what feels right and appropriate to them. As long as the arbitrator knows how to proceed, the parties can get moving on their case as quickly as they wish without having to worry about court delays, pandemic-induced or otherwise.

For complex cases, this method can be much more efficient in identifying the real pressure points in the case and can speed what may have taken months and months of discovery, negotiation and court time so that resolution can be reached in far less time. And for cases where the parties already know what they want, those cases can be resolved in a matter of days. Not weeks. Not months. Not years. Days.

Too good to be true? I’m not so sure.

There are lingering issues around whether an arbitrator has the authority to order the parties’ marriage dissolved, or what their responsibilities are around child custody agreements and guideline child support. These are fair questions.

As to the first, if the parties do not need a judge to get them married, why do they need one to get divorced? If they trusted the family friend who registered as an officiant for 24 hours in order to perform the marriage ceremony, why can’t the parties hire someone with specific expertise in the area of family law (lawyer, therapist, counselor, whomever) to help them break those marital bonds? I believe those are fair questions that cry out for a reasoned response (and by “reasoned,” I don’t mean “because this is the way we’ve always done it” – that is no kind of response at all).

As to the custody and support issues, an arbitration award can be enforced by a court (though courts are generally not permitted to chime in on the terms of the award unless some kind of fraud is involved), and I do not believe a court would allow for a child custody agreement that is detrimental to the children without addressing it, or a child support award that does not adequately protect against the State having to subsidize the family at some point. 

I don’t think that many family law judges are dealing with these questions at the present moment. But I believe that courts in the near future are going to be facing them more frequently. At least, I hope they are. Because that would mean that the arbitration of divorce cases has become more common — and that is, in my opinion, a key to unlocking the backlog of family law cases in our congested courts, and in providing a framework for people who need family law solutions but do not need, or want, to sue each other in court to get them.

Attorney NEIL FORESTER is the owner of FORESTER FAMILY LAW PC, a remote-first ADR practice. Amid COVID-19 conditions, he prioritizes out-of-court alternatives to traditional litigation for divorce and parenting disputes. Neil is a California bar-certified Family Law Specialist and a Fellow in the American Academy of Matrimonial Lawyers. He provides second opinions and trial strategy consulting, as well as prenups, adoptions, cohabitation agreements, domestic partnerships, and pet parenting plans. Learn more at foresterfamilylaw.com and follow @nmeforester on Twitter. 

This information is general in nature and should not be construed as legal advice.