By Andrea Ciobanu, Ciobanu Law, P.C.
Family Law Arbitration is a unique alternative to resolving family law cases, whereby the parties agree to have their family law matter heard before a Family Law Arbitrator as opposed to a judge or other judicial officer. The idea of resolving disputes by arbitration has been around for thousands of years. A big boost for arbitration in the United States came in 1925 with the adoption of the Federal Arbitration Act, which was enacted to establish “arbitration as an antidote to the costliness and delays of litigation.” Thereafter, the Uniform Arbitration Act was presented in 1955, and the Revised Uniform Arbitration Act in 2000. On October 1, 1999, North Carolina became the first state to adopt an arbitration statute specifically designed for family law cases. Indiana adopted the Family Law Arbitration Act in 2005. Over the next couple of years, forty-nine (49) states adopted or enacted some form of Family Law Arbitration and it has been increasingly popular ever since.
“Arbitration,” as we know it today, was practiced in ancient Egypt, Rome, and Greece. Philip of Macedon, father of Alexander the Great, is recorded to have used arbitration to settle territorial disputes arising from a peace treaty with some of the Greek states in 337 BC. Others will point to the judgment of King Solomon in the Old Testament as the ultimate “judgment award” and possibly first recorded “Family Law Arbitration.” The Sumerian Code of Hammurabi (c. 2100 BC) was promulgated in Babylon, and under the Code it was the duty of the sovereign to administer justice through arbitration. England used arbitration as a common means of commercial dispute resolution as far back as 1224. British Arbitration developed as a means for merchants and traders to avoid the courts. In India, arbitration was conceived in the system called the Panchayat. Indian civilization was an express proponent of encouraging settlement of differences by tribunals chosen by the parties themselves. There are other instances of disputes submitted to the Rabbi or the Feudal Lord. Arbitral tribunals between Italy and France which dealt with trade disputes and had their roots in Italy where they were called the officium mercanziale.
The history of arbitration itself is really quite fascinating, but not the purpose of this article, and as such, a cursory overview will suffice. Regardless of what led up to modern arbitration as we know it today, there are specific modern rules that we must follow and be aware of, in order to adequately advocate for our clients if we are to utilize Family Law Arbitration. We can also provide more benefits to our clients when we are aware of the wide array of tools that we may implement in our family law cases.
Although this article cannot cover all the nuances of Family Law Arbitration, this article seeks to provide some introductory, yet very important information, for Family Law Arbitration.
Overview of Family Law Arbitration in Indiana
Family Law Arbitration in Indiana is governed by the Family Law Arbitration Act (“FLAA”), as outlined in IC 34-57-5. It should be noted that IC 34-57-5-1 applies only to Family Law Arbitration and does not apply to any other type of arbitration. Further, an appellate court opinion “interpreting or construing” IC 34-57-5-1 has precedential value only for family law arbitration and does not apply to any other type of arbitration.
Family Law Arbitration in Indiana requires that either both parties are represented by counsel or that both parties are self-represented; one self-represented party and one represented party is not permissible in Indiana Family Law Arbitration. Further, parties must agree to Family Law Arbitration in Indiana and cannot be ordered to arbitrate, absent that mutual agreement. However, once parties agree to arbitrate, it is “valid, enforceable, and irrevocable,” absent a few exceptions as explained in further detail herein. See, IC 34-57-5-3. The agreement to arbitrate must be reduced to writing and filed with the court. The parties, upon mutual agreement, may identify an individual to serve as a Family Law Arbitrator, or, they may indicate that they have not selected a Family Law Arbitrator and the court shall provide a panel of three (3) “qualified” Family Law Arbitrators in which the parties may strike from. Qualifications for a Family Law Arbitrator may include: a Certified Family Law Specialist in Indiana by an independent certifying organization that is approved and monitored under Rule 30 of the Rules for Admission to the Bar, a former commissioner or magistrate of an Indiana court of record, a private judge qualified under Rule 1.3 of the Indiana Supreme Court Rules for Alternative Dispute Resolution, or an attorney who is a registered domestic mediator under Rule 2.5(B) of the Indiana Supreme Court For Alternative Dispute Resolution. See, IC 34-6-2-44.7. Once a Family Law Arbitrator is appointed or chosen, he or she is required to take oath to “faithfully perform the duties of the family law arbitrator; and (2) support and defend to the best of the family law arbitrator’s ability the constitution and law of Indiana and the United States.” A signed copy of this oath is then submitted to the court. See, IC 34-57-5-5.
Pursuant to IC 34-57-5-2 and IC 34-57-5-8, parties can agree to arbitrate their family matter for the dissolution of marriage to divide the martial property, to establish child support, child custody or parenting time, or to modify a decree, judgment, or an order. A paternity matter may be submitted to an arbitrator; however, the paternity itself must either already be established or the paternity matter must be determined by the court and the other matters, such as parenting time, custody and child support, may be submitted to Family Law Arbitration by agreement of the parties. Family Law Arbitrators cannot hear contempt matters or order jail time; however, they have the ability to allocate arbitration fees as explained herein.
Residency requirements are slightly more relaxed in Family Law Arbitration. IC 34-57-5-4 requires that only one (1) of the parties are a resident of Indiana (or stationed at a United States military installation in Indiana) for at least six (6) months immediately preceding the filing of the petition or cause of action. There are no county requirements in Indiana Family Law Arbitration.
A record of the proceeding in family law arbitration may be requested by either party, but a recording or transcription is not automatic. Written notice must be provided to the Family Law Arbitrator not more than fifteen (15) days after the family law arbitrator has been selected if parties wish to have the proceedings recorded or a court reporter present. See, IC 34-57-5-6. The written notice must specify the manner of the recording and the preserving of transcript. The Family Law Arbitrator may select the person to record or transcribe any proceedings, but the parties will pay for the transcription and/or court reporter’s services. Id.
The rules of evidence are much more relaxed in Family Law Arbitration and parties can agree ahead of time on which rules of evidence they will adopt and what evidence is coming in; however, parties and witnesses are still placed under oath when they testify. The Indiana Supreme Court Rules for Alternative Dispute Resolution apply to family law arbitration. See, IC 34-57-5-12. Family Law Arbitrators must still submit to the guidelines adopted by the Indiana Supreme Court for child support and parenting time. See, IC 34-57-5-5.
Fees in Family Law Arbitration are split equally by both parties unless otherwise agreed in writing. See, IC 34-57-5-12. The Family Law Arbitrator may also order a party to pay reasonable arbitration fees. Fees for the Family Law Arbitration must be paid no later than thirty (30) days after the court enters judgment. See, I.C. 34-57-5-7. If both parties consent, the period to issue written findings may be extended to ninety (90) days after the hearing. Id. Arbitrators are then required to make “written findings of fact and conclusions of law,” and submit to the court. The trial court shall then “enter judgment” by approving and signing the written findings. Id.
Benefits of Family Law Arbitration
While this all sounds very technical, there are several benefits to Family Law Arbitration. First, the parties must attend either both represented or both represented by counsel. Therefore, the parties are generally on the same playing field. Parties can select their arbitrator if they so choose. While it seems contested, parties are required to agree to Family Law Arbitration ahead of time and can tailor the process to meet their family’s needs. Scheduling can be much more flexible (on Saturdays if all parties and the arbitrator agree) and much quicker than getting into regular courts. Formal continuances and certain filings are not always required as in regular courts, but the process still requires that all parties are placed on notice and agree as to what specific issues will be heard and determined by the Family Law Arbitrator. Evidence is much more relaxed than in regular court and can actually save the parties time and money in terms of witness testifying, witness preparation, expert witnesses, and presentation of evidence. Many of the matters or manner of presentation are agreed or stipulated by the parties ahead of time.
Additionally, choosing an arbitrator, or a panel of three (3) arbitrators by agreement, with specialized knowledge, can benefit the litigants. Additionally, an arbitrator may be more involved than an actual judge. Moreover, Family Law Arbitration cases can be heard in a relaxed setting (the arbitrator’s office, for instance) and these are confidential proceedings, meaning, no other parties are permitted to be present during the proceedings, except for witnesses, only when testifying. Not only are the proceedings themselves closed, but the evidence itself is closed and confidential and retained by the Arbitrator. Family Law Arbitration is a great option for individuals that want to keep their financial information and other information in their family law proceedings confidential and closed from the public. Like mediation agreements, however, the final order is submitted to the court for final approval and judgment.
Appealing Family Law Arbitration Decisions
Appeals are very difficult in Family Law Arbitration cases but may be modified if a party makes a fraudulent misrepresentation during arbitration, the arbitrator is ordered to modify the award on remand, or both parties consent to the modification. See, IC 34-57-5-10. (See also, Bopp v. Brames, 677 N.E.2d 629, 631 (Ind. Ct. App. 1997) “The purpose of arbitration is to afford parties the opportunity to dispose of controversies in an easier, more expeditious manner than litigation. To facilitate this purpose, judicial review of arbitration is very narrow in scope.”)
A Brief Overview of Indiana Family Law Arbitration Case Law
There are only a handful of published cases on Family Law Arbitration in Indiana. The most important issues to be aware of in Indiana Family Law Arbitration cases is that Family Law Arbitration must be mutually agreed upon between the parties, reduced to writing, and specific in nature as to what matters will be submitted to the Family Law Arbitrator. This is because Family Law Arbitration is governed by contract law.
Pursuant to Indiana law, the “party seeking to compel arbitration has the burden of demonstrating the existence of an enforceable agreement.” Wilson Fertilizer & Grain v. ADM Miling Co., 654 N.E.2d 848, 849 (Ind.Ct.App.1995), trans. denied (1996). When determining whether the parties have agreed to arbitrate a dispute, courts apply “ordinary contract principles governed by state law.” Mislenkov v. Accurate Metal Detinning, Inc., 790 N.E. 2d 595 (2003). Additionally, “[w]hen construing arbitration agreements, every doubt is to be resolved in favor of arbitration,” and the “parties are bound to arbitrate all matters, not explicitly excluded, that reasonably fit within the language used.” Id. (See also, Indiana CPA Society v. Gomemember, Inc., 777 N.E.2d 747 (Ind.Ct. App. 2002) holding that Indiana recognizes “strong policy of enforcing valid arbitration agreements,” noting this case is not a Family Law Arbitration case but has been cited to support the validity of parties to arbitrate in Family Law Arbitration cases). However, parties are only bound to arbitrate issues that by “clear language they have agreed to arbitrate.” See, Mislenkov, 743 N.E.2d at 289. Arbitration agreements will not be extended by construction or implication (“arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he or she has not agreed to submit”). Id. See also, Brockmann v. Brockmann, 938 N.E.2d 831, 835 (Ind. Ct. App. 2010), trans denied (holding that, “parties are only bound to arbitrate those issues that by clear language they have agreed to arbitrate, and arbitration agreement will not be extended by construction or implication to cover any other matters”).
An overview of family law arbitration shows that such an approach is increasingly popular in other states and other countries. Time will tell how utilized Family Law Arbitration becomes in Indiana; however, one thing is for certain: Family Law Arbitration is one more tool with various advantages and flexibilities that Indiana Family Law Attorneys should consider when representing and advocating for their clients.
Andrea Ciobanu is the managing attorney of Ciobanu Law, PC. She practices frequently in the area of family law, appeals, and alternative dispute resolution. She currently serves on the Indianapolis Bar Association’s Family Law Executive Committee, and is a trained Guardian ad Litem, Parenting Coordinator and Registered Domestic Mediator and has also attended Family Law Arbitration Training.
Family Law Arbitrators are neutral and must abide by the Indiana Code of Judicial Conduct. Family Law Arbitrators also have the same immunity as a judge acting in judicial authority. Full disclosure of any conflicts, potential conflicts, and/or relationships must be disclosed to all parties.
Kentucky is the only state to not enact or adopt some form of Family Law Arbitration.
The Code of Hammurabi is the longest surviving text from the Old Babylonian period. It is far more significant in legal history than any of its forerunners, such as Ur-Nammu. Made up of 282 laws, carved in forty-nine columns on a basalt stele, the Code addresses a variety of issues arising out of civil, criminal and commercial matters. Hammurabi describes the code as “laws of Justice” intended to clarify the rights of any “oppressed man”: King, L.W., “Hammurabi’s Code of Laws.” This may be accessed at: http://www. eawc.evansville.edu/anthology/hammurabi.htm. (Last accessed April 23, 2016).
Douglas M. Johnston, The Historical Foundations of World Order: The Tower and The Arena, (The Netherlands: Martinus Nijohff Publications, 2008) at 195.
Arbitration in India then continued its development with the first Bengal Regulations, enacted in 1772 during the British rule, followed by more specific legislation, the Indian Arbitration Act 1940, which was later modernized by the Arbitration and Conciliation Act 1996. No 26 of 1996, referred to as the “1996 Act.” See Krishna Sarma, Momota Oinam & Angshuman Kaushik, “Development and Practice of Arbitration in India – Has it Evolved as an Effective Legal Institution” (October 2009) CDDRL Working Papers, Number 103. Prior to the enactment of the 1996 Act, there were three main statutes governing arbitration in India. These were the Arbitration (Protocol and Convention) Act 1937, the 1940 Act, and the Foreign Awards (Recognition and Enforcement) Act 1961. All these acts are now repealed with the 1996 Act. Basham, A. L. 1981. See also The Wonder that Was India: A Survey of the Culture of the Indian Subcontinent before the Coming of the Muslims. Paperback edn. Calcutta. Originally New York, 1954 (many reprints).
The Indiana Alternative Dispute Resolution Rule 3.4(B) provides: Unless otherwise agreed, all documents the parties desire to be considered in the arbitration process shall be filed with the arbitrator or Chair and exchanged among all attorneys of record no later than fifteen (15) days prior to any hearing relating to the matters set forth in the submission. Documents may include medical records, bills, records, photographs, and other material supporting the claim of a party. In the event of binding arbitration, any party may object to the admissibility of these documentary matters under traditional rules of evidence; however, the parties are encouraged to waive such objections and, unless objection is filed at least five (5) days prior to hearing, objections shall be deemed waived. In addition, no later than five (5) days prior to hearing, each party may file with the arbitrator or Chair a pre-arbitration brief setting forth factual and legal positions as to the issues being arbitrated; if filed, pre-arbitration briefs shall be served upon the opposing party or parties. The parties may in their Arbitration Agreement alter the filing deadlines. They are encouraged to use the provisions of Indiana's Arbitration Act (IC 34-57-1-1 et seq.) and the Uniform Arbitration Act (IC 34-57-2-1 et seq.) to the extent possible and appropriate under the circumstances.
This article acknowledges that the Indiana Rules of Alternative Dispute Resolution are currently under review; however, no formal approval of modification to the rules have been adopted at this time. Public Comments were open up to and through April 11, 2016 and are now closed.
The purpose of arbitration is “to entertain consideration of disputed matters and to reach acceptable decision and award, without having to undertake often ponderous and costly judicial proceedings.” Polinsky v. Violi, 803 N.E.2d 684, 688-89 (Ind. Ct. App. 2004). See also, Preston v. Ferrer, 552 U.S. 346, 357, 128 S. Ct. 978, 986 (2008) (“A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results,’ noting that these cases are not Indiana Family Arbitration Cases, but have been cited to support the validity of the agreements to arbitrate Indiana Family Law Arbitration cases.
For example, parties can agree to have a panel of three (3) arbitrators to hear their case instead of just one (1) arbitrator. This may be advantageous in complex family law cases that require specialized knowledge in multiple areas, such as farming, commercial real estate, business evaluations, and the like, for parties that wish to have a panel of arbitrators with a wide array of expertise.
A perceived exception to this may be that the GAL is permitted to be present during these proceedings. However, Indiana Courts have held that a GAL is a “party to the proceedings” so this is not a true exception or violation of the closed proceeding requirement in Family Law Arbitration cases. See, Carrasco v. Grubb, 824 N.E. 2d 705, 710 (Ind.Ct.App.2005).
This article was written by Andrea Ciobanu, Ciobanu Law, P.C. If you would like to submit content or write an article for the Family Law Section page, please email Kara Sikorski at firstname.lastname@example.org.