With new laws, pressures on the court system and the economic reality of escalating legal costs, it is time for arbitration to be considered a serious method of alternative dispute resolution in family law cases.

The Oklahoma Legislature recently amended the family law code to require courts to conduct a substantive (not proffer) temporary order hearing on child custody, visitation, child support and other ancillary matters, including property.[1] Where domestic violence is alleged, the same substantive hearing must be held within 10 days.[2] The amendment became effective Nov. 1, 2024.[3] This may cause significant docket congestion in the larger counties.

Practitioners may anticipate “cattle call” dockets with multiple cases being disposed of with rapid-fire dispensation of the “substantive” hearings to meet this statutory deadline. Arbitration of these temporary order hearings and family law matters in general – if embraced by the legal community – could alleviate much of the anticipated log jam. It would give parties the time and expert attention needed to resolve their initial temporary order, if not their entire case, thereby avoiding the overcrowded docket.

Another common issue in family law practice is piecemeal trials, where the court hears evidence on nonconsecutive days over several months. This is inefficient, as both counsel and the court must reprepare by reviewing previous testimony each day the matter is set. This "start-stop" process increases preparation time and counsel fees. Arbitration, like any other ADR process, involves additional expenses that the parties voluntarily incur.[4] The parties select their arbitrator and share the associated hourly rates.[5] The cost savings arise from the efficiency of the process.[6] Preliminary conferences and hearings are scheduled promptly, either virtually or by conference call, and requests for discovery and interim relief are handled swiftly.[7] This approach saves parties thousands of dollars in attorney and expert fees and reduces their time away from work and home obligations.[8] The arbitrator may schedule a hearing on consecutive days to avoid the inefficient “start-stop” approach to family litigation.

Arbitration is generally faster than traditional litigation.[9] Arbitrators set and enforce deadlines for discovery, appraisals and expert reports, scheduling hearings with input from the parties or their counsel.[10] The final award is typically issued within 30 days.[11] Family law cases in traditional litigation can take months or even years to conclude, as trial courts are often overwhelmed with an increasing number of self-represented parties.[12]

FAMILY LAW MATTERS ARE SUBJECT TO ARBITRATION IN OKLAHOMA WITH JUDICIAL REVIEW

Oklahoma law explicitly authorizes family law arbitration in one situation. Title 43 O.S. §109H states:

In the event of a dispute between the parents having joint custody of a child as to the interpretation of a provision of the plan, the court may appoint an arbitrator to resolve the dispute. The arbitrator shall be a disinterested person knowledgeable in domestic relations law and family counseling. The determination of the arbitrator shall be final and binding on the parties to the proceedings until further order of the court.

If a parent refuses to consent to arbitration, the court may terminate the joint custody decree.[13] [Emphasis added.]

Although this provision is limited to the narrow instance of parties disagreeing to “an interpretation of a provision of the (joint custody) plan,” it is instructive as to the Oklahoma Legislature’s intent to allow arbitration as a dispute resolution method in family law disputes. The qualifications of the contemplated arbitrator are simply impartiality and knowledge of domestic relations law and family counseling.[14] By making the decision “final and binding” until further order, the statute embraces the finality of arbitral decisions. Likewise, it also teaches that the consequences may be severe for a party who refuses to participate in a court-ordered arbitration by imposing the possible sanction of losing joint custody.

No Oklahoma case law explicitly allows or prohibits arbitrations involving child custody disputes. It is difficult to imagine that appellate courts would allow it in certain situations, such as contemplated by the joint custody statute, but not in others.

OKLAHOMA LAW ALLOWS PRIVATE DIVORCE TRIALS UNDER THE REFEREE STATUTE IF THE COURT RETAINS JURISDICTION TO ADOPT OR REJECT THE REFEREE’S FINDINGS

The parties to a civil action, such as a divorce or other family law matter, may consent, in writing, to the submission of factual and legal issues to a referee.[15] Oklahoma law does not prohibit private attorneys from serving as a referee if they would otherwise be qualified to serve as a judge.[16] The referee’s decision is subject to judicial oversight from the appointing judge, with a process for parties to object to the referee’s findings.[17] In a private trial proceeding, the parties agree to use the referee statute to resolve their issues and submit an agreed order for court approval. When the private trial ends, the referee submits written findings subject to the parties’ objections, which must be approved by the court in a decree.

Arbitration is an adjudicative process, like a private trial by a referee. There is little to no distinction between the two processes. A best practice for a family court arbitration under current Oklahoma law would be for the parties to have their agreement to arbitrate submitted as a referral order. The referral order would approve the arbitration, designate the qualified arbitrator or arbitral institution and appoint the arbitrator as a referee of the court under 12 O.S. §611 et seq. When the arbitration concludes, the parties must submit the award with findings of fact and conclusions of law consistent with the referee statute as a decree or final order for approval to the court. Then, either party may challenge the award under both the Oklahoma Uniform Arbitration Act and the Trial by Referee Statute.

FAMILY ARBITRATIONS DIFFER FROM OTHER ARBITRATIONS BECAUSE THEY REQUIRE COURT APPROVAL FOR THE REFERRAL FOR ARBITRATION AND THE CONFIRMATION OF THE AWARD

In civil arbitration, it is common for a party to participate in an arbitration and comply with an arbitral award voluntarily, keeping the process and award confidential and without the necessity of court intervention.[18] This is impossible in family law because only the court has the authority to issue orders granting a divorce or legal separation,[19] divide property[20] and make custody decisions about children.[21]

The court in a family law matter must divide the property, whether real or personal, that has been jointly acquired during their marriage in a manner “as may appear just and reasonable.”[22] The court may allow alimony to either spouse, out of the separate property of the other, in an amount “the court shall think reasonable.”[23] The parties to a divorce case may negotiate a settlement of their case. If they reach an agreement, it must be presented to the court for consideration. However, such an agreement is not binding on the court.[24]

Within this framework, the parties may negotiate an arbitration agreement for their family law matter to be heard in full or in part by an arbitrator. However, the arbitrator’s award, like a settlement agreement, must be approved by the court. The court must find the award as to property and spousal support “fair, just, and reasonable.”[25] The court must also find it has jurisdiction over the children and any child custody or child-related arbitral decisions to be in the child’s best interests.[26] In this process, family law arbitral awards are subject to a mandatory judicial review, unlike other arbitral awards and much like family law settlement agreements.

THE NATIONAL TREND TOWARD FAMILY LAW ARBITRATION AND THE UNIFORM FAMILY LAW ARBITRATION ACT (2016)

In 2016, the Uniform Law Commission (ULC) enacted the Uniform Family Law Arbitration Act (UFLAA), creating a potential statutory scheme for states to enact.[27] The ULC and the American Academy of Matrimonial Lawyers (AAML) enacted resolutions for its passage nationwide.[28] According to the UFLAA, a "family law dispute" refers to a contested issue falling under the state's family or domestic relations law. These disputes often involve conflicts over marital property, spousal support, child custody and child support. The act specifies that an arbitrator may not:

• Grant a divorce
• Terminate parental rights
• Grant an adoption or guardianship of a child or incapacitated person
• Determine the status of a child needing protection[29]

Family law disputes differ from traditional commercial disputes for the purposes of arbitration, and the UFLAA includes specific provisions not found in the Uniform Arbitration Act or the Revised Uniform Arbitration Act.[30] These provisions are designed to protect vulnerable individuals, such as children and victims of domestic violence, during the arbitration process.[31] For example, unless both parties waive the requirement, the UFLAA mandates that arbitrators receive training in identifying domestic violence and child abuse before handling a family law dispute. If an arbitrator detects abuse, they must pause the arbitration and refer the case to court.[32] Similarly, if a party is under a protection order, that part of the dispute will be directed to court for resolution.[33]

The UFLAA mandates a thorough judicial review of arbitration awards related to child issues.[34] While awards about property or spousal support undergo limited judicial review, child-related awards can be confirmed only by a court if they comply with applicable law and serve the best interests of the child.[35] Additionally, states have the option to enact de novo review of child-related awards.[36] Some states may prefer to exclude child-related disputes from arbitration, and the act offers an opt-out provision for this purpose.[37]

Once the court confirms an award, a party can seek a modification under state laws governing post-decree modifications. If both parties consent, these modification actions can be resolved through arbitration.[38]

In 2023, the state of Washington and the District of Columbia enacted the UFLAA, joining Arizona, Hawaii, Montana and North Dakota. The Uniform Law Commission website maintains a record of states that have adopted any uniform law.[39] Family law arbitrations may be allowed in states where the UFLAA has not been enacted. A recent ABA survey found that 49 states, including Oklahoma, allow family law arbitrations as to property and financial issues.[40] Additionally, 37 states, including Oklahoma, allow family law arbitrations regarding child custody issues, with many requiring some form of judicial review of the awards.[41]

ISN’T MEDIATION A BETTER OPTION THAN ARBITRATION?

Thirty-plus years ago, lawyers were reluctant to use mediation in attempting settlement of their cases.[42] The anxiety of revealing too much of their best evidence or disclosing their trial strategy was compounded by a fear of potentially demonstrating their negotiation weaknesses.[43] Mediation is now considered mainstream – frequently ordered by courts before pretrial conferences are scheduled, used in almost every case and considered the “best hope” in resolving difficult disputes.

Mediation is not always effective for numerous reasons. Mediation often fails due to errors of valuation. Effective communication of valuation is crucial, as poor signaling can lead to misunderstandings and hinder settlement.[44] Another reason for mediation failure is the lack of shared factual grounding. Parties may hesitate to share information, but transparency is essential for building trust and settling.[45] Important information revealed during mediation can significantly affect the other side's valuation and facilitate resolution.[46] High emotionality can cloud judgment and impede mediation.[47] Litigants often engage in disputes due to perceived injustices or personal stakes, leading to irrational decision-making.[48] Emotional investment from both parties and their counsel can create barriers to settlement, making it essential to manage emotions effectively during mediation.[49]

In these circumstances, arbitration can be a better option because parties in a family law matter may not build a consensus in mediation and may also not want the expense and delays inherent in litigation.

CONCLUSION

Family law arbitration in Oklahoma presents a promising avenue for enhancing the efficiency and effectiveness of family law proceedings. The recent legislative changes underscore the state's commitment to reducing court congestion, providing speedy resolution to proceedings and minimizing costs associated with traditional litigation. Arbitration offers a streamlined process, leading to more timely resolutions and benefiting all parties involved. Oklahoma's move toward embracing arbitration aligns with the national trend of adopting the Uniform Family Law Arbitration Act, reflecting a broader recognition of arbitration's potential in family law matters.

However, it is crucial to maintain a balance between the benefits of arbitration and the necessity of judicial oversight. While arbitration can expedite proceedings and provide a more flexible framework for dispute resolution, the role of the judiciary remains vital in ensuring the rights and interests of all parties, particularly children, are adequately protected. As Oklahoma continues to integrate arbitration into its family law system, careful consideration must be given to preserving the integrity and fairness of the process. By doing so, the state can harness the full potential of arbitration to improve the administration of family law while safeguarding the essential principles of justice.

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ABOUT THE AUTHOR

Edward G. Lindsey serves as the director of the Oklahoma Arbitration Center and is a practicing attorney in Tulsa. He earned his J.D. from the TU College of Law in 1992, and in 2023, he received an LL.M. in alternative dispute resolution from the University of Aberdeen School of Law and was named a Fellow of the Chartered Institute of Arbitrators in 2024. Mr. Lindsey is admitted to practice in all Oklahoma state and federal courts, the Muscogee Creek Nation, the 10th Circuit Court of Appeals and the U.S. Supreme Court. His legal focus includes alternative dispute resolution, family law and civil litigation.

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ENDNOTES

[1] See 43 O.S. §110(B)2.

[2] Id.

[3] Id.

[4] Carolyn Moran Zack, Family Law Arbitration: Practice, Procedure, and Forms, ABA Family Law Section, 2020 (updated as of April 3, 2023).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Carolyn Moran Zack, Family Law Arbitration: Practice, Procedure, and Forms.

[10] Id.

[11] Id.

[12] Id.

[13] See 43 O.S. §109(H).

[14] Id.

[15] See 12 O.S. §612.

[16] A referee must be appointed by the court and must possess qualifications like those of a judge. Specifically, the referee should be a lawyer and be specially qualified for their duties (Juvenile v. Jennings, 541 P.2d 229 (1975)). This is consistent with the requirement that referees in juvenile cases must be lawyers and specially qualified for their duties (Juvenile v. Jennings, 541 P.2d 229 (1975)). Other states act similarly. The referee must be law-trained and licensed to practice law. This requirement is essential for referees who are given duties such as conducting hearings, calling witnesses, ruling on the admissibility of evidence and making findings of fact and recommendations (Schmidt v. Thompson, 347 N.W.2d 315 (1984)). This ensures that referees have the necessary legal expertise to perform their duties effectively.

[17] See 12 O.S. §622.

[18] See American Bar Association, GP Solo eReport, “Confidentiality in US Arbitration,” March 23, 2023. Confidentiality in U.S. Arbitration.

[19] See 43 OS §112 et seq.

[20] Id.

[21] Id. See also Jones v. White 430 P3d. 544 (Civ. App. 2018). The parties cannot consent to subject matter jurisdiction to a forum noncompliant to the Oklahoma Uniform Child Custody Jurisdiction Act (OUCCJEA) found at 43 O.S. 551-201(a).

[22] See 43 O.S. §121. See also Adams v. Adams 11 P.3d 220 (Civ. App 2000).

[23] Id.

[24] See Acker v. Acker, 1979 OK 67, 594 P.2d 1216, Seelig v. Seelig, 1969 OK 160, 460 P.2d 433. In Dickason v. Dickason, 1980 OK 24, 607 P.2d 674, the court held that a settlement agreement is not enforceable, absent its approval by the court. It shall not be approved unless it is fair, just and reasonable.

[25] Id.

[26] See 43 OS §112. See also Jones v. White supra.

[27] Uniform Law Commission, The Uniform Family Law Arbitration Act (2016).

[28] Id. See also, “Resolution in Support of Divorce and Family Law Arbitration,” adopted March 14, 2024.

[29] Uniform Law Commission, The Uniform Family Law Arbitration Act.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Linda Diane Elrod, “Review of Law in the 50 States in 2023: ICWA Survives and State Courts Tackle Thorny Jurisdictional Issues,” Family Law Quarterly (Aug. 12, 2024), ABA Family Law Section.

[40] Carolyn Moran Zack, Chart F from Family Law Arbitration: Practice, Procedure, and Forms, ABA Family Law Section, 2020 (updated as of April 3, 2023).

[41] Id.

[42] Maria R. Volpe and Charles Bahn, "Resistance to Mediation: Understanding and Handling It," Sociological Practice: Vol. 10: Issue 1, Article 5, 1992. Available at https://bit.ly/4jOYjTo.

[43] Id.

[44] Nicole Nguyen, “Three Reasons Mediations Fail and Three Ways to Move Forward,” Advocate. August 2020.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.