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On March 12, the American Academy of Matrimonial Lawyers adopted the AAML Model Family Law Arbitration Act with recommended rules. Interest among matrimonial lawyers in this traditional commercial dispute resolution procedure can be traced back to the late 1980s, but family law practitioners have been slow to embrace it as an integral part of their practices. That appears to be changing, and that change can only benefit clients in the throes of matrimonial disputes. Two national developments may have something to do with the increasing acceptance of this procedure. In 2000, the National Conference of Commissioners on Uniform State Laws updated the 1955 Uniform Arbitration Act with the Revised Uniform Arbitration Act. Ten states have adopted this act, and it is before the legislatures in nine other states, including the District of Columbia. The act in turn became the foundation for the AAML Model Act, the second significant national development. A number of states have adopted matrimonial law arbitration statutes, with the most comprehensive statutes in North Carolina (1999) and Michigan (2000). At least eight other states have statutes expressly permitting matrimonial law arbitrations, but these are often bare-bones cross-references to general commercial arbitration statutes. Arbitrations on at least some family law issues are permitted in most other states by case law. Family law arbitrations are different from traditional commercial arbitrations, and the better state statutes address these differences. The AAML Model Act provides for the modifiability of child custody, child support and spousal support awards to the extent that custody and support agreements, orders, judgments and decrees are modifiable by state law. The model act defaults to a single arbitrator and to a reasoned award, although the parties can contract for different terms. Reasoned awards with findings of fact and conclusions of law may be critical in custody and support awards that are subject to modification or judicial review. Provision is made for judicial review of child issue awards in an effort to address parens patriae doctrine concerns. Because of the firmer statutory footing, the comfort level among family law practitioners for taking cases to arbitration is significantly enhanced. Several advantages While not all family law cases are appropriate for arbitration, there are several potential advantages that should be considered: Client-friendly procedure. Arbitration proceedings typically take place in a law office with much less formality than is required by a court. While at least one party may not like the outcome, most parties like the less intimidating evidentiary process in the more relaxed office setting. Arbitration sessions may be scheduled at such times as are convenient for the parties and their attorneys. Attorney-friendly procedure. Although arbitration can be as formal as the parties and their attorneys desire, nearly all such hearings proceed under relaxed rules of procedure and evidence. A rbitrator expertise. The parties and their attorneys select the arbitrator. Arbitrators with specific expertise on a critical issue of the case can be selected. Finality. Depending on the terms of the arbitration agreement, appeals on substantive issues of law may be limited or waived completely. The AAML Model Act preserves traditional appeal grounds on procedural issues unrelated to the arbitrator’s rulings on substantive matters and creates an appeal right on child issue determinations. There are other safeguards that can be built into an arbitration proceeding other than traditional judicial appellate review, such as the use of a three-arbitrator panel. Speed and economy. Although the parties must pay the arbitrator, the case can be tried on a budget if that is important to the parties. The parties can agree to limit the time allotted for the presentation of evidence and can agree that some evidence will be presented by affidavits or by attorney summaries. Prearbitration conferences with the arbitrator and creative drafting of arbitration rules can streamline the hearing process. Privacy. Many parties regret that their dirty laundry and private business dealings must be preserved in public court files and voiced in public courtrooms. Arbitration provides these parties with an opportunity to keep all of this information confidential. Arbitration allows the parties and their attorneys to design the procedures and to select the person or persons who will make the critical decisions. The AAML Model Act imposes strict conflict-of-interest disclosure requirements on arbitrators. The marketplace creates a strong incentive for arbitrators to be fair, thorough, considerate and competent-at least for those who want to continue arbitrating cases. An increasing number of family law practitioners view matrimonial law arbitration as a promising procedure to resolve their clients’ matrimonial disputes more effectively and efficiently. Lynn P. Burleson is a partner at Raleigh, N.C.-based Tharrington Smith. He is the chairman of the Arbitration Committee of the American Academy of Matrimonial Lawyers. He can be reached at [email protected].

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