PENNSYLVANIA UNIFORM FAMILY LAW ARBITRATION ACT

On May 8, 2024, after a four-year effort by the Family Law Section, Pennsylvania’s legislature approved the Uniform Family Law Arbitration Act (“UFLAA”), 42 Pa. Cons. Stat. §§ 7371-7398, which will become effective July 7, 2024. The UFLAA received unanimous, bipartisan support throughout the legislative process, and is widely applauded as providing the necessary guardrails to protect the needs of family law participants in this voluntary, efficient, and private alternative dispute resolution process.  As such, the UFLAA is anticipated to enhance the ability of citizens of Pennsylvania to avail themselves of arbitration in family law disputes. Experienced family law attorneys will have the ability to discuss and explore with clients the option of arbitration in family law disputes with their clients.  The process who be a more reliable and consistent process for submitting their clients’ family law claims than exists in traditional litigation. The availability of arbitration under the new law requires that parties and attorneys be aware of this option for family law participants, who can reap benefits including selecting their decision-maker, avoiding the stress, delays, and expense of litigation, and achieving timely and final outcomes of in their divorce, support and custody matters.

Here are the key provisions of the new Statute:

1. No status determinations.  The arbitrator may not make an award granting a divorce or annulment terminating parental rights, granting an adoption or guardianship, or determining the delinquent status of a child.
2. Must apply substantive law.  The arbitrator must apply the substantive law of the Commonwealth, including its choice of law rules, in determining the merits of a dispute. Previously, there was no requirement that the arbitrator apply substantive law.
3. Agreement to arbitrate controls.  The parties specify in their agreement to arbitrate the identity of the arbitrator or the method of selecting one, the scope of the dispute submitted to the arbitrator, the amount to be paid to the arbitrator, and deadlines for decisions. Thus, the parties determine whether to submit one or all issues to the arbitrator and also have a say in the costs and timing of the arbitration.
4.  Child-related issues can be arbitrated.  Child support and child custody issues can be arbitrated, consistent with existing law. However, the parties cannot agree to arbitrate these issues until the dispute arises, except if the court approved this agreement, and the arbitrator must state the reasons for the award for review by the trial court, as may be requested by either party, to ensure it is in the child’s best interest.
5. Arbitrator qualifications.  The parties can select any person to be an arbitrator, but unless they expressly waive these requirements, the arbitrator must be an attorney, a former attorney on inactive status, or a senior judge and shall have completed five hours of continuing education in domestic violence and child abuse.
6. Disclosures by arbitrator.  The Act reinforces existing requirements under law for the arbitrator to disclose any relationship that would affect the impartiality of the arbitrator or the arbitrator’s timely ability to make a final award.
7. Party rights.  A party may be represented at an arbitration by counsel and may be accompanied by an individual who will not be called as a witness or act as an advocate. This provision was included to ensure that one party to an arbitration will not intimidate or overpower another.
8. No ex parte communication.  A party or their representative may not communicate ex parte with an arbitrator, nor shall the arbitrator allow such communication, except to the extent allowed in a family law proceeding for communication with a judge.
9. Protection of a party of child.  If a party is subject to a protection order or the arbitrator believes that there is a reasonable basis to believe that a party is the victim of domestic violence, or a party’s safety or ability to participate effectively in the arbitration is at risk, the arbitrator must stop the arbitration and refer the parties to court. The arbitration may not proceed unless the party at risk confirms their intention to proceed with arbitration and the court determines the consent is voluntary, the arbitration is not inconsistent with the protection order, and there are procedures in place to protect the party.  The arbitrator who reasonably believes that a child who is the subject of a child custody dispute is abused or neglected must stop the arbitration and report the abuse or neglect to the court or appropriate authority.  The arbitrator may make temporary awards to protect a party or a child who is the subject of a child custody dispute from harm, harassment, or intimidation.
10. Broad powers of the arbitrator.  Unless the parties agree otherwise, the arbitrator has broad authority to conduct the proceeding including setting the rules for the arbitration, holding a conference before the hearing, requiring a party to provide information, interviewing a child who is the subject of a custody dispute, appointing a private expert, administering an oath or affirmation, issuing a subpoena for the attendance of a witness or the production of documents, compelling discovery and issuing sanctions for failure to comply, prohibiting a party from disclosing information for good cause, appointing an attorney, guardian ad litem or other representative for the child at the parties’ expense, imposing a procedure to protect a party or child from the risk of harm, harassment, or intimidation, allocating fees and costs, or imposing sanctions for bad faith or misconduct.
11. Issuance of award.  The arbitrator shall issue a written award and, unless the parties otherwise agree, make written findings explaining the award.  The award will typically be issued within 30 days of the conclusion of the hearing. The award is not enforceable until it is confirmed by the court, which takes place on motion of a party.
12. Judgment on the award.  On granting the order confirming the award, the court shall enter judgment in conformity with the order and, on motion of a party, the court shall order that the record be sealed to prevent public disclosure.
13. Modification of award.  The ability to seek modification of an arbitration award is limited. A party may seek modification of the judgment entered on the award as provided under substantive law (i.e., modification of child support, spousal support/APL, or alimony, except as otherwise agreed by the parties, and custody), and the matter will proceed in court unless the parties agree to arbitrate.
14. Enforcement of award.  The court shall enforce a confirmed award as though it were entered as an order of the court and shall give full faith and credit to such awards confirmed by another state.
15. Appeals.  Appeals are limited to the procedural bases set forth in the Act. There are no substantive appeals of arbitration awards, except in the case of child-related awards. As such, the ability to appeal is very limited.  This fosters the finality that the arbitration process provides.

The Pennsylvania Family Law Arbitration Act provides procedural safeguards to protect the rights of family law participants, and to ensure that their important family law claims are resolved fairly, expediently, and consistently with substantive law. The Act gives family law clients and their attorneys the option to resolve these disputes with a decision maker they choose in a confidential setting, which may help to preserve their co-parenting and extended family relationships and will free up valuable court resources for cases in which the party’s right of appeal must be preserved.

PLEASE NOTE THAT THIS BLOG WAS BASED ON AN ARTICLE WRITTEN BY CAROLYN ZACK, ESQUIRE OF THE PHILADELPHIA FIRM MOMIJIAN ANDERER, LLC.  FOR THE PENNSYLVANIA FAMILY LAW LAWYER.  MS. ZACK AND ROBB BUNDE OF BUNDE & ROBERTS, P.C. SERVED AS CO-CHAIRS OF THE ARIBITRATION COMMITTEE OF THE FAMILY LAW SECTION OF THE PENNSYLVANIA BAR ASSOCIATION IN LEADING THE WAY TO HAVE THE PENNSYLVANIA UNIFORM FAMILY LAW ARBITRATION ACT SIGNED INTO LAW.