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Arbitration | Divorce & Family Law, Washington State

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by Samuel K. Darling, Bellevue Family Law Lawyer

This article provides a how-to explanation of arbitration in Washington State divorce and family law matters, including parenting plan and child support disputes. In Washington, like many other states, arbitration comes in two types: 1) binding arbitration (when parties agree to arbitration) and 2) mandatory arbitration (when the law requires people to arbitrate). This article explains both.

Table of Contents:
I. What Is Arbitration?
II. What Are the Main Differences Between the Two Types of Arbitration?
III. How Does Arbitration Work?
1. Binding Arbitration.
2. Mandatory Arbitration.
3. Exception for Binding Arbitration of Parenting Plans.

I. What Is Arbitration? Arbitration is an alternative to traditional judicial proceedings. Like court, arbitration involves a neutral person deciding the outcome of a dispute. However, instead of a judge or court commissioner deciding the outcome, a private person does, called the arbitrator. Usually the arbitrator is someone deemed trustworthy – perhaps an authority figure in the parties’ religion, a retired judge, or an attorney with a great deal of experience in the related legal field. He or she must also be neutral – not initially biased in favor of one party or the other.

There are three main advantages of arbitration in family law proceedings. First and foremost, it tends to be less formal than court proceedings. This can decrease the cost, time, and stress involved in resolving a dispute, though not always.

Second, parties sometimes prefer to arbitrate because it gives them greater choice over who resolves the dispute. For example, both parties to a family law matter might prefer to have a member of their religious community decide the outcome, or they might prefer an attorney with a great deal of family law experience over a judge with more limited knowledge of the legal topic.

Third, the arbitration process tends to be much more private than court proceedings. Traditional judicial proceedings and all documents the parties submit in them are of public record, available for anyone to view. Arbitration, on the other hand, usually takes place in a private conference room, and the public can only view the arbitrator’s decision, which usually leaves out many of the sensitive details.

Notably, arbitration is very different from mediation, though people often confuse them. They are easy to conflate because of their similar names and because they are both alternatives to court, often called “alternative dispute resolution”. By contrast, mediation involves a person who helps the parties reach their own agreement. The mediator, unlike an arbitrator, does not decide the outcome. If the parties cannot reach an agreement, the mediation fails and the dispute remains unresolved; whereas arbitration should always result in a decision on the disputed issue(s).

Commonly parties to a failed mediation will subsequently hire the mediator to act as arbitrator and decide the dispute.

II. What Are the Main Differences Between the Two Types of Arbitration? By way of reminder, the two types are 1) binding (when people agree to arbitrate) and 2) mandatory (when court rules force the parties to arbitrate). In family law, the primary form of arbitration is the binding variety – the kind people agree to rather than being forced into. When people agree to arbitrate rather than go to court, they mostly eliminate their right to appeal the outcome. The arbitrator’s decision almost always stands. This is why it is called “binding arbitration” – the arbitrator’s decision is usually final. It is even more final than a judge’s decision. An aggrieved party can often appeal a judge’s decision. An arbitrator’s decision, by contrast, is virtually unassailable.

Mandatory arbitration, on the other hand, is something a local superior court’s rules often require the parties to engage in. The case might begin with traditional court filings, but rules require the parties to arbitrate rather than go to trial. Usually these are cases the court sees as being of lesser importance, such as cases where only smaller amounts of money are in dispute, as opposed to disputes over land, large amounts of money, or child custody. For example, local court rules might force the parties into mandatory arbitration if their only disputes relate to child support and/or spousal maintenance (alimony).

Unlike binding arbitration, mandatory arbitration results in a decision that is readily appealable. A party who dislikes a mandatory arbitration award can, as a matter of right, request a “de novo” trial with a judge. De novo means the trial is as if the arbitration never happened. The court proceeding resumes with no deference to the arbitration result. In other words, a mandatory arbitration award only stands if the parties accept it by taking no action during the appeals window. You might think, “That makes the process worthless, because the loser will always ask for a trial, right?” Perhaps surprisingly, parties often do not appeal so long as they believe the process and result are fair.

III. How Does Arbitration Work? The process is different for each of two types of arbitration. Binding arbitration proceeds under the rules in Chapter 7.04A RCW, which, in turn, says the parties’ agreement governs. Mandatory arbitration rules tend to be much more rigid and numerous. They can be found in 1) Chapter 7.06 RCW, 2) the state’s Superior Court Civil Arbitration Rules, and 3) each county superior court’s local rules on mandatory arbitrations.

The remainder of this article provides a more complete explanation of the typical process for each of the two types of arbitration, as well as a special exception for parenting plan disputes.

1. Binding Arbitration Procedure. The parties’ agreement to arbitrate determines the procedure for resolving a binding arbitration dispute. To the extent the parties’ agreement does not specify what procedure to follow, the arbitrator has wide latitude to set the procedural rules. The parties’ agreement to arbitrate almost always sets the boundaries of which issues are before the arbitrator. See In re Marriage of Pascale, 173 Wn.App. 836, 844 (2013) (enforcing agreement placing drafting disputes before an arbitrator rather than the court). If the scope of an arbitration agreement is unclear, it should be interpreted in favor of submitting disputes to arbitration rather than court.

Incidental to an express agreement to decide family law issues, the arbitrator gains the ability to award fees and costs relating to those same issues, including the arbitrator’s own fees, just as if he or she were a judge deciding those same issues in court. State law also gives arbitrators subpoena powers, such as the power to subpoena a witness to appear and testify.

The arbitration hearing usually takes place in a manner similar to either a court motion (usually for small or expedited decisions) or trial (for larger decisions warranting a more extensive decision-making process). Our firm has a separate articles on how to file a motion and respond to one. The instructions in those articles should be largely applicable here with certain common-sense changes. For example, a person filing an arbitration motion generally does not need a calendar note setting the date and location for the hearing, though the parties and the arbitrator should reach a clear agreement on when and where the hearing will take place.

Our firm also has a separate article on how a trial takes place. Again, those instructions should be applicable with obvious changes, such as the substitution of the word “arbitration” for “trial” in any document captions.

Upon completion of the arbitration hearing, the arbitrator issues a decision, usually in writing, called an award. Either party may then file a motion requesting that the county superior court “confirm” the award. The court confirms the award by signing an order or orders in the family law matter, just as if the court rather than the arbitrator had decided the matter. For example, the arbitration award might state the terms of the parties’ divorce, and the court would then confirm the award by entering the orders that finalize the divorce, such as a divorce decree.

Generally motions to make clarifications or minor typographical or mathematical corrections to an arbitration award can be submitted to the court or to the arbitrator at the choice of the party filing the motion, unless the arbitration agreement states otherwise. A motion based upon the arbitrator exceeding his or her authority should be submitted to the court for correction. The applicable statutes place time limitations on these types of motions, so an aggrieved party should act quickly. If an aggrieved party otherwise believes an arbitrator’s decision was unfounded or unfair, he or she can ask the superior court to vacate it. Vacation is rare and must be founded upon extreme circumstances, such as the arbitrator’s clear corruption or fraud.

2. Mandatory Arbitration Procedure. As mentioned above, there are three highly detailed sets of rules for mandatory arbitration, and the third set varies from county to county. This makes it difficult to describe how mandatory arbitrations proceed in family law matters across the state. Thankfully, mandatory arbitration of family law matters is rare, at least in Washington’s largest counties. Of the three largest counties – King, Pierce, and Snohomish – only Snohomish County regularly forces parties to arbitrate family law matters. And Snohomish County only does so in the limited subset of cases in which only child support and/or spousal maintenance are in issue.

Our firm’s article on child support modifications describes the mandatory arbitration procedure for Snohomish County.

Upon completion of a mandatory arbitration hearing, the arbitrator must file his or her written decision/award with the superior court and serve it upon the parties. A party who disagrees with the award has a right to a trial de novo to review it. The request must be filed with the superior court within 20 days of the arbitrator filing his or her award. If neither party requests a trial de novo, either party can file a motion to have the superior court confirm the arbitration award as a superior court order or judgment. As with binding arbitration, a court confirms the award by entering final orders in the case.

3. Exception for Binding Arbitration of Parenting Plans. Because of public policy concerns, Washington has put limits on binding arbitration of parenting plans. Parties can agree to arbitrate parenting plan disputes but, by and large, courts and the legislature have said the arbitration award is appealable de novo to the county superior court, much like a mandatory arbitration award. This is based upon the principle that a judge’s obligation to protect children cannot be delegated to an arbitrator. For example, in the seminal case of In re Parentage of Smith-Bartlett, a Washington appellate court found that, despite the parties’ agreement to arbitrate parenting disputes, the arbitrator’s resulting award was reviewable de novo by the trial court. Similarly, RCW 26.09.184(4)(e) states parties have a right to review an arbitration that takes place pursuant to the dispute resolution process mandated in the parties’ parenting plan. A more recent case, In re Marriage of Coy, went so far as to render an agreement to arbitrate a parenting plan unenforceable.

That’s it! Our firm believes in making quality legal information available for free online. For more, visit the resources tab of our website, located in the upper right corner of any page. From all of us at Genesis, best of luck with your family law matter.

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