The Journal of The DuPage County Bar Association

Back Issues > Vol. 18 (2005-06)

Northern’s Exposure
Protecting the Best Interests of the Child: Arbitration as an Alternative to Custody Litigation
By Kimberly Anne Sackmann

I. Introduction

Alternative dispute resolution processes are continuing to grow in popularity and are currently used in many different areas of law. Specifically, mediation is being regularly used in family law disputes,1 and the use of and interest in arbitration of family law disputes is increasing.2 The popularity of these processes stems from the fact that "the adversarial, rights-based model [of traditional family law and child protection litigation] often fails to serve the interests of children and families and may be more harmful than beneficial to children."3 Disputes over the custody of children are emotional and can be detrimental to the well-being of the child involved. Despite the desire, and requirement, that the best interests of the child be determinative, children are hurt by the process of litigation itself.4 Due to this fact, mediation has become a popular and successful alternative to custody litigation. However, in some states, arbitration has also become an option.5 With the emerging use of mediation and arbitration it is essential that attorneys examine and discuss each process with their clients in order to determine which approach is most appropriate for their individual situation. It is important to acknowledge that not all families will want to or be able to resolve their disputes in the same way. Litigation has proven not to be for everyone. For some it is too adversarial. It may seem that mediation is a more appropriate form of resolution for parties seeking to avoid the judicial process;6 however, mediation is also not for everyone. There are always circumstances under which the parties may be better served by having an authority make a final decision. If two parties understand that if or when a disagreement arises between them they will not be able to come to a resolution amongst themselves, arbitration may be the better alternative. Arbitration gives, to some extent, a middle ground between mediation and litigation.

II. Mediation and Arbitration

Both mediation and arbitration give parties an opportunity to resolve their disputes without the strict adversarial constructs associated with traditional custody litigation. Mediation is more likely to serve the needs of parties who have equal bargaining power and who believe they can come to a resolution together. Mediation puts the power and control of the decision in the hands of the parties. Arbitration is a more suitable approach for parties who do not believe they will be able to work together to reach an amicable solution. Arbitration takes the final decision away from the parties and gives it to an arbitrator or panel of arbitrators. While this may sound similar to litigation, the parties in arbitration had the opportunity to choose their process and their decision maker, thus making it a less adversarial process.

Mediation is a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.7 The process "tends to build upon the parties’ willingness to settle" or reach an agreement.8 The parties are given the opportunity to work with the mediator to reach a mutually acceptable agreement, which will become binding if accepted by the parties and the court as a formal settlement.9 Mediation has many benefits such as the "ability to more adequately address the emotional aspects of [the situation]."10 Some of the other advantages of mediation are efficiency and client satisfaction with the process and outcome.11 Mediation is a very appropriate choice when there must be a continuing relationship between the parties.12 This is certainly true when there are children involved. While the benefits of mediation certainly make it an acceptable choice, there are some detriments to the process. One striking disadvantage to mediation, specifically court-ordered mediation, is that the parties frequently do not have the opportunity to choose their mediator.13 This is usually not true of voluntary mediation. Parties tend to be more satisfied with the process and the result if they had the opportunity to help choose a mediator who fits their situation and each party feels comfortable with. Another prominent problem is a power imbalance. Many times power imbalances will result in "unfair agreements."14 If there is a strong power imbalance between the parties in some instances the "weaker" party will feel the need to submit to the demands of the more powerful party.

Mediation is an excellent process that has a very promising success rate. In many cases mediation is probably the most appropriate method for deciding family disputes, especially those concerning children, however, mediation is not the only alternative.

Arbitration is a method of dispute resolution involving at least one neutral third party, chosen by the parties, who renders a binding decision.15 The process is far less formal than a trial proceeding and arbitrators are not generally bound by precedent.16 The less formal nature and the efficiency of the process attract persons who wish the settle their disputes privately and quickly.

Family law arbitration is a process in which spouses or ex-spouses agree to submit the issues surrounding their divorce to a neutral third party for a binding decision.17 Although the arbitrator’s decision is binding upon the parties, generally, a party may seek to have the award invalidated or enforced by the courts.18 However, while public policy continues to favor arbitration, courts will likely confirm the arbitrator’s award. "Public policy favors arbitration as promoting the efficient resolution of disputes, and as giving the parties what they bargained for, that is, an arbitrator’s, not a court’s decision."19

In a voluntary arbitration, the parties involved usually choose their arbitrator and determine the guidelines and standards by which the arbitrator and the parties must abide.20 Unless specifically directed by the parties, the arbitrator is not bound by substantive law or the rules of evidence.21 The parties, having the occasion to choose their arbitrator, are presented with an opportunity to choose a person with matrimonial expertise who will likely be more able to decide their issues with the sensitivity and decorum necessary. Generally, the arbitration decision is binding, though in some jurisdictions is subject to de novo review if resolving decisions affecting children.22 It has been argued, however, that this review should not exist because it is contrary to the expectations of parties seeking arbitration.23 In addition, while the courts are reluctant to release their position as the protector of children, and have reserved a limited review of arbitration awards concerning custody, "nothing in the Uniform Arbitration Act requires or even permits the de novo review which many courts impose for custody cases."24

While the courts have treated arbitration agreements inconsistently, a number of courts have upheld arbitration of certain family law disputes25, and a growing minority has allowed arbitration of child custody.26 Many courts have determined that custody and support are arbitrable, but retain the final responsibility and say in the child’s best interests.27 While many of these jurisdictions have allowed de novo review, in Kelm v. Kelm, the Ohio Supreme Court stated that "while this approach preserves the court’s role as parens patriae, we believe that, ultimately, it advances neither the children’s best interest not nor the basic goals underlying arbitration."28 However, in Dick v. Dick the court explicitly found "no clear prohibition in case law, court rule or statute against the use of binding arbitration in the resolution of custody disputes," and went further to state that "arbitration is an acceptable and appropriate method of dispute resolution in cases where the parties agree to it."29 This court was the first to hold that an arbitration award concerning custody would also be binding upon the courts.30 In Faherty v. Faherty, decided eleven years prior to Dick, the court noted that as experience within family law arbitration continues to grow, a child’s best interests could be served and protected by an arbitrator and there would no longer be a need for a de novo review by the court.31 In Sheets v. Sheets, the court determined that it still had the right to conduct a de novo review if there was a showing that the award would adversely affect the child, however, the court cautioned the parties that just because the award affects the child does not automatically evoke judicial review.32 In order to review the arbitration decision the court must find that the award adversely affects the child’s welfare.33 While it would be ideal if arbitrators were allowed to make their decision without judicial review concerning the best interests standard, even with this possible review, arbitration is still a viable and necessary option for parties seeking resolution of martial and custody disputes.

III. Family Mediation in Illinois

Mediation of family law disputes has become quite common in Illinois and in some circuits is required. Two of the more prominent Illinois programs have been developed in the 17th and 18th Judicial Circuits. The 17th Judicial Circuit has created the Family Mediation Program.34 As of April 1, 1993, "all dissolutions … involving contested hearings of custody, visitation, and removal shall be subject to mediation."35 The main purpose for instituting this program is "mediation will help ensure that the parties consider fully the best interests of the children and that they understand the consequences of any decision they reach concerning the children."36 The 17th Circuit also noted that mediation is more cost-effective than litigation and could be a more positive experience for the parents and their children.37 The 18th Judicial Circuit also has a well-developed mediation program.38 Effective since March 1, 1988 the 18th Judicial Circuit has referred familial disputes to mediation through the Mediation and Evaluation Program.39 In addition, to help ensure that mediation is successful the court has implemented a "Caring, Coping and Children" class that is required prior to mediation.40 It should also be noted that to ensure quality and confidence in the mediation programs, both the 17th and 18th Judicial Circuit programs have created specific qualifications for who may serve as a family law mediator.41

Aside from the specific Rules set out by the Circuits mediation and possible other alternative processes are provided for in the Illinois Marriage and Dissolution of Marriage Act.42 When parties or the court are considering an award of joint custody the parties must create a Join Parenting Agreement.43 "This agreement must specify a procedure by which proposed changes [or disputes] may be mediated or otherwise resolved."44 (emphasis added). By stating that a procedure must be chosen implies that mediation is not the only alternative, thus possibly opening the door to arbitration of joint custody issues. However, currently mediation appears to be the only alternative option available in Illinois for the determination of child custody.

IV. Appropriateness of Arbitration

"The development of a fair and workable … arbitration process to resolve [child custody and visitation] issues may be more beneficial to the children … than the present system of courtroom confrontation."45 To some it may appear that arbitration is not the most appropriate method for resolving marital disputes. However, it seems that parties should be allowed to choose the method of dispute resolution they feel is most appropriate for their situation. Emotions run high in custody proceedings and an arbitrator has the opportunity to set a tone of calm and comfort in a private setting.46 The success of arbitration in various fields has inspired some to believe arbitration should be used more frequently in divorce proceedings.47

As previously noted, mediation is currently used regularly in family disputes,48 and in some states is mandated prior to allowing a judicial proceeding.49 Some seem reluctant to endorse arbitration because of its binding nature and the lack of opportunity to appeal.50 However, marital arbitration is not court mandated.51 Arbitration concerning marital issues is voluntary arbitration to which the parties agree. According to the court in Dick v. Dick, "binding arbitration is an acceptable and appropriate method of dispute resolution in cases where the parties agree to it."52

Choosing to arbitrate familial and marital issues can have many benefits for the parties involved. First of all, the parties have the opportunity to choose their decision maker.53 This is beneficial because the parties can choose someone with specific expertise in the area of family law and someone both parties respect and feel comfortable making decisions that will greatly affect their lives. Another benefit to arbitration, like mediation, is the speed and efficiency of the process.54 When choosing to litigate familial matters parties must wait until the court has an available time. With the current backlog of cases in the court system, the wait until trial could be extensive. With arbitration the parties can effectively choose the day and time during which the arbitration will take place.55 The efficiency of this process also keeps costs down and more importantly, reduces the amount of time any children are forced to deal with the stress and tension of the proceedings.56 It should also be noted that arbitration is far less adversarial and cutthroat than litigation and is therefore less stressful and traumatic for children.57 Arbitration is also less formal and "permits greater self-determination of the process by the participants."58 Due to this self-determination parties will likely be more accepting of the results of the proceeding will be more likely to generate goodwill between the disputing parties.59 While there can be detriments to using arbitration60 those detriments are outweighed by the benefits.

As noted previously, courts seem reluctant to allow binding arbitration in matters concerning children. This reluctance would seem more appropriate if there were not arbitrators specifically trained in the area of family law and more specifically child custody. In 1984 the Supreme Court of New Jersey noted, "it may become evident that a child’s best interests are as well protected by an arbitrator as by a judge."61 One commentator noted that the American Academy of Matrimonial Lawyers (AAML) and the Family Law Section of the ABA have created groups of appropriately trained persons to arbitrate these sensitive issues and that hopefully this training and expertise will lead to an understanding and realization that there are competent arbitrators in this area that the courts can trust.62 In addition, "with overloaded dockets, high costs and delay, the traditional judicial system may not offer the best forum for the child."63 Even Chief Justice Burger questioned the appropriateness of the courts for divorce and child custody matters.64 Specifically, Chief Justice Burger stated that arbitration is "generally cheaper and speedier than a trial, causes less wear and tear on the participants and will very likely produce a more satisfactory result."65 He went on to explain that we have been "neglecting a very valuable tool" by not utilizing arbitration more vigorously.66

The American Law Institute has recommended that if parents have agreed to binding arbitration concerning parenting issues after divorce the court should enforce any ensuing arbitration award with respect to the child or children unless it appears that the agreement was not voluntary or the award would adversely affect the welfare of the child.67

V. Conclusion

If it remains important to our society to keep the child’s best interests as the determinative factor in custody decisions, all means of pursuing that end must be available. It has been shown that mediation is an appropriate forum for custody decisions and has been very successful.

However, the possibility of using arbitration must be considered more fully to see if it too may serve as a positive alternative to custody litigation. Giving parties the ability to choose their decision maker, require the he or she follow the best interests of the child standard, while still avoiding the judicial process is worth considering. As noted there are professionals specifically trained to arbitrate family law disputes. The necessary experience in family law arbitration has been gained and children can now be protected as well, if not better, by an arbitrator as they can by a judge.

While mediation should always continue to be an option for family disputes, especially those concerning custody, like litigation, mediation is not for everyone. Admittedly, neither is arbitration. However, all avenues and possible alternatives should be understood and available to parties wishing to use them. With the goal of protecting and promoting the best interests of the child the search to find the most appropriate method for doing so must never end. No matter what process is used children will be negatively affected, however, everything possible should be done to ensure that the damage done through divorce and custody proceedings is as minimal as possible. Arbitration may serve as another option for protecting the best interests of children.

1 Frank L. McGuane, Jr., Model Marital Arbitration Act: A Proposal, 14 J. Am. Acad. Matrim. Law. 393 (1997).

2 Joan F. Kessler, et. al. Why Arbitrate Family Law Matters, 14 J. Am. Acad. Matrim. Law. 333 (1997).

3 Gregory Firestone and Janet Weinstein, In the Best Interests of Children: A Proposal to Transform the Adversarial System, 42 Fam. Ct. Rev. 203 (2004).

4 Id.

5 See Dick v. Dick, 534 N.W.2d 185 (Mich. App. Ct. 1995).

6 See generally, Christine Albano, Binding Arbitration: A Proper Forum for Child Custody?, 14 J. Am. Acad. Matrim. Law. 419, 421-22 (Explaining that mediation offers a win-win opportunity for the parties and the parties will feel more satisfied and be more willing to continue a positive relationship with one another knowing they came to an agreement together).

7 Black’s Law Dictionary (8th ed. 2004).

8 Albano, supra note 6, at 421.

9 Id. at 421.

10 Mary Kay Kisthardt, The Use of Mediation and Arbitration for Resolving Family Conflicts: What Lawyers Think About Them, 14 J. Am. Acad. Matrim. Law. 353, 371 (1997).

11 Id. at 368.

12 Albano, supra note 6, at 422.

13 Kisthardt, supra note 10, at 373.

14 Id. at 374.

15 Black’s Law Dictionary (8th ed. 2004).

16 Id. at 337.

17 Kessler, supra note 2, at 334.

18 See, e.g., Marks v. Marks , 548 S.E.2d 919 (Va. App. 2001) (Wife seeking confirmation of arbitration award); Masters v. Masters, 513 A.2d 104 (Conn. 1986) (Husband seeking to vacate an arbitration award).

19 Franke v. Franke, 674 N.W.2d 832, 838 (Wis. 2004).

20 See Kessler, supra note 2, at 339-40.

21 See Andre R. Imbrogno, Arbitration as an Alternative to Divorce Litigation: Redefining the Judicial Role, 31 Cap. U. L. Rev. 413, 415 (2003).

22 See, e.g., Sheets v. Sheets, 254 N.Y.S.2d 320 (N.Y. App. Div. 1964).

23 Kelm v. Kelm, 749 N.E.2d 299 (Ohio 2001).

24 Kessler, supra note 2, at 351.

25 See Pulfer v. Pulfer, 673 N.E.2d 656 (Ohio Ct. App. 1996). "Courts have held that, in matters of child support, arbitration does not destroy the court’s tradition role as parens patriae." Id. at 658.

26 See Masters, 513 A.2d at 113-14 (Stating that "the trial court correctly determined that disputed issues were proper subjects for arbitration" but that if the father had made allegations that the arbitrator’s award adversely affected the children then the court would have been required to examine the merits of the case more closely).

27 See Miller v. Miller 620 A.2d 1161, 1163-64 (Pa. Super. 1993) (Expressing that even though the agreement made by the parties was not void based on public policy the court can still review the decision if it is in the child’s best interests).

28 749 N.E.2d at 302.

29 534 N.W.2d at 190.

30 Id.

31 477 A.2d 1257, 1263 (N.J. 1984).

32 254 N.Y.S.2d at 324.

33 Id.

34 Family Mediation Program IL R 17 Cir. Rule 14.08.

35 Id.

36 Id. at Rule 2.

37 Id.

38 Mediation and Evaluation Program, IL R 18 Cir. Rule 15.18(1)

39 Id. at A(1).

40 Id. at A(5).

41 Id. at B; IL R 17 Cir. Rule 14.08 at Rule 6 (In addition to other requirements, both Circuits require specialized training in family mediation, and completion of courses in court approved courses or study or courses offered by the court).

42 Illinois Marriage and Dissolution of Marriage Act, 750 Ill. Comp. Stat. Ann. 5/602.1 (West 2002).

43 Id. at 5/602.1(b).

44 Id.

45 Faherty, 477 A.2d 1263.

46 Nicole Pedone, Lawyer’s Duty to Discuss Alternative Dispute Resolution in the Best Interest of Children, 36 Fam. & Conciliation Courts Rev. 65, 72 (1998).

47 Thomas E. Carbonneau, A Consideration of Alternatives to Divorce Litigation, Ill. L.Rev. 1119, 1151 (1986).

48 McGuane, Jr., supra note 1.

49 Christy L. Hendricks, Note, The Trend Toward Mandatory Mediation in Custody and Visitation Disputes of Minor Children: An Overview, 32 J. Fam. L. 491 (1993-94).

50 Imbrogno, supra note 21.

51 Crutchley v. Crutchley, 293 S.E.2d 793, 794 (N.C. 1982). Court held that the trial court had no authority to order mandatory binding arbitration, even with the consent of the parties.

52 534 N.W.2d at 191.

53 Kessler, supra note 2, at 336.

54 Id.

55 Id.

56 Id.

57 See Pedone, supra note 35.

58 See Kessler supra note 2, at 337.

59 Id.

60 See id. (Parties are not protected by the rules of discovery, financial disclosure or evidence and that as a matter of law there is a possibility that there cannot be a final or binding determination made concerning custody).

61 Faherty, 477 A.2d at 1263.

62 Kessler, supra note 2, at 351.

63 Albano, supra note 6, at 445.

64 Unclogging the Courts—Chief Justice Speaks Out, U.S. News & World Report, Feb. 22, 1982 at 36.

65 Id.

66 Id.

67 Sarah Rudolph Cole & E. Gary Spitko, Arbitration and the Baston Principle, 38 Ga. L. Rev. 1145, 1148 n.5 (2004).

Kimberly Anne Sackmann is a 2nd year law student at Northern Illinois University College of Law. She is a member of the Northern Illinois University Law Review and President of the Alternative Dispute Resolution Society. Ms. Sackmann received her B.A in May 2004 from Lewis and Clark College in Portland, Oregon.

DCBA Brief