For a few years my friend and colleague, Barry W. Knobel of Knobel Mediation Services, LLC, has been encouraging me to rethink my opposition to family court arbitration. Barry is a retired family court judge–thus my frequent, joking references to him as “the formerly honorable…”. He now makes his living doing family court mediation and arbitration and providing strategic family court litigation support. Based in a large part on Barry’s encouragement, I have begun agreeing, on occasion, to arbitrate family court issues. A different friend and colleague, Anthony Lamantia, has suggested I explain my reasoning.
My major past objections to arbitration have been the limited appeal rights from an arbitration ruling (covered in S.C. Code § 15-48-130) and the lack of a requirement that the arbitrator make factual findings or legal conclusions to justify the award (compare S.C. Code § 15-48-90(a), “The award shall be in writing and signed by the arbitrators joining in the award” with SCRFC 26(a), “An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision”). A further objection is that the parties don’t have to pay a judge but they have to pay the arbitrator.
However with budget cuts, limited court time and the failure to increase the number of family court judgeships as the number of docketed cases increases [there are studies showing that South Carolina family court judges have more docketed cases per judge than family court judges from any other state], the family court dockets have become increasingly unpredictable.
Having to prepare for multiple standby dates or waiting for trial to start because a judge has emergencies to handle adds to clients’ legal bills without increasing the effectiveness of my advocacy. Due to reduced docket times and the necessity to have DSS merits cases heard within a particular time frame, I am increasingly having my trials cancelled within weeks of trial, and often not getting rescheduled until months later. Further the family courts are generally requiring mediation before trial. Mediation is useful in most cases but it is an added expense. One can skip mediation before arbitrating. For arbitration cases where mediation might be useful, the parties can employ what is called “blended mediation/arbitration,” in which the third-party neutral acts initially as the mediator to see if the parties can reach an agreement on many disputes and then acts as the arbitrator, deciding the disputes the parties cannot agree upon.
Further clients are often inconvenienced by having to be ready for multiple standby dates or having trial dates cancelled. Since arbitration is less formal, typically it takes less time to arbitrate a case than try a case. Often the savings of knowing the precise date and time of an arbitration, and knowing that this date and time is very unlikely to be cancelled by the arbitrator, overcomes the added expense of a paid arbitrator.
As for the appeal issue, most of the disputes I am agreeing to arbitrate need resolution but aren’t worth appealing if my client loses. I am agreeing to arbitration to resolve rules to show cause in which the alleged violations are numerous but minor (with our agreeing that the arbitrator can decide compliance issues and the remedies for non compliance without authorizing contempt findings or sanctions) or for small visitation or personal property disputes. These are the type of disputes in which the parties need resolution but the stakes are too small to merit appealing.
The biggest advantage of arbitration–and the reason I sometimes find it preferable to a judicial resolution–is that one can chose the arbitrator and limit, by agreement, the arbitrator’s authority. For example, one can arbitrate alimony with a high-low agreement in which the parties’ agree that alimony will be within a range of amount or duration and with the arbitrator to decide the amount and duration within those limitations. It is unclear whether parties can limit a family court judge’s discretion in the same manner. Being able to select the decision maker is a strong advantage over the random assignment of family court judges to trials. Often this ability to select the decision maker outweighs the requirements that a family court judge make factual findings and legal conclusions to justify the result (especially when some family court judges issue memo instructions directing the prevailing party’s attorney to make “appropriate” factual findings and legal conclusions to justify the ruling).
There are a few family court arbitrators–Barry W. Knobel being an obvious example–who have more family law experience than many family court judges. The longer I practice family law, the more the “ability” to select the decision maker appeals to me. I suspect family court arbitration will become an increasing part of South Carolina family law practice.