Arbitration, Private Judges, and Your California Divorce

Long before COVID-19 caused California courtrooms to severely limit and delay family law proceedings, parties in divorce proceedings were increasingly turning to private judges, arbitrators, and mediators to resolve their divorce cases. And now with the extreme uncertainty and delay related to the courts’ current closures and limited service offerings, these alternative paths should be considered by parties who have unresolved conflicts in their divorce who would like to move forward with some degree of speed.

For the purposes of this article, we will focus on private judges and arbitrators who both act to resolve issues in a binding manner – as opposed to mediators who work with divorcing couples to reach voluntary settlement – and discuss their differences and respective benefits.

Why People Choose to Proceed Before Private Judges and Arbitrators

Outside of the filing fees that come with a divorce, the public courtrooms are essentially a free service, while private judges and arbitrators can be relatively expensive, often charging a higher hourly rate than the attorneys representing the respective parties. So why do people take on the added expense?

For one thing, going before a private judge or arbitrator can counter-intuitively be cheaper than being in a public courtroom, where you and your attorney (who is charging by the hour even if he or she is just sitting there waiting) may need to wait all day in an unpleasant courtroom atmosphere to get your time before the judge (after perhaps waiting for months simply to get the hearing even in non-pandemic times), and the judge may simply tell you to come back in a few months or send you to a different court. Furthermore, your private judge is far more likely to be able to focus on the specifics of your case when there are not 10-20 other cases before them that day, and may well have a far greater knowledge of family law in general than a recently-appointed judge who never practiced family law.

Add to this that private judges and arbitrators often conduct their proceedings in private, luxurious conference rooms with amenities as opposed to an uncomfortable public courtroom where your dirty laundry (and everyone else’s) is on display for all the world to see.

Finally, private judges and arbitrators by and large have incorporated Zoom and other teleconferencing applications into their services (and many did even before the pandemic), and have successfully conducted all types of status conferences, hearings, and even trials with the parties being able to participate from their own private homes or offices. While protecting people’s safety during the pandemic, these types of services often provide parties far more comfort and accessibility compared to sitting in a public courtroom surrounded by members of the public.

The Differences Between a Private Judge and Arbitrator

Something that arbitrators and private judges have in common is that the parties themselves will agree on who the arbitrator or private judge will be that makes binding decisions regarding their divorce. Some prenuptial and postnuptial agreements may even lay out the process for choosing such an individual. A difference, however, is that the California court system will have to appoint the private judge who oversees the case (which presumably the courts will do if the parties are in agreement) while arbitrators are not necessarily appointed or overseen by the court system. Many private judges are themselves former family court judges, while an arbitrator may be a lawyer who has never sat on the bench.

Following from this, when working with a private judge, the parties will be expected to follow the same procedural and evidentiary rules as in a California court, and the private judge will make his or her decisions just as a family court judge would, and, to the extent those decisions are made in error, the parties may appeal them in court. Furthermore, the documents filed before a private judge will be public record just as would be the case in a regular courtroom proceeding.

Arbitration, on the other hand, is comparatively removed from the California court system. Arbitration can be less formal, and the parties are free to enter into an arbitration agreement which lays out a different procedure for how the case should proceed and/or provide discretion to the arbitrator in certain matters. And while the documents presented in arbitration may not be public record as they are before a private judge, the ability to appeal the decision of an arbitrator may be more limited than before a private judge.

An important note is that, under California law, arbitrators cannot make binding decisions with respect to child custody or child support, as California takes the view that the children’s rights under the law cannot be limited by private agreement between the parents. An arbitrator can certainly make a decision regarding children, but both parents (and the children) retain their rights to obtain a different decision in the courts.

Guidance on Your California Family Law Questions From a Westlake Village Family Law Attorney

If you would like to learn more about how our office can provide guidance on any California family law issues you are facing in Ventura County or Los Angeles County, including proceeding with your case through either mediation or before a private judge or arbitrator, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.