Understanding Alternatives to Family Court Litigation in PA

When family lawyers first meet a new client, they hear about an upcoming custody battle or similar descriptions used to describe impending family court matters. The nature of the dispute could be the custody of children, a divorce and the division of assets, or the determination of child or spousal support.

When litigants think about going to court to address family matters, they expect a fight, and the emotions that accompany that expectation induce stress and anxiety, but it does not have to be that way. Pennsylvania offers non-litigation options that give families more control in the outcome, can save time in reaching a resolution as well as money spent on legal fees, and can alleviate the contention and hostility that often accompanies traditional litigation.

In July 2024, the Uniform Family Law Arbitration Act (UFLAA) went into effect. The law allows for voluntary participation in a private alternative dispute resolution process. The parties must mutually agree to arbitration and mutually agree on the selection of an arbitrator. To be qualified, the arbitrator must be an attorney, a former attorney on inactive status, or a senior judge, and must have successfully completed five hours of training in domestic violence and child abuse. The training must be approved by the Pennsylvania Supreme Court Continuing Education Board.

Once selected, an arbitrator is allowed to make determinations about child custody and child support, spousal support, alimony, and equitable distribution. All determinations must be pursuant to Pennsylvania law. The UFLAA does not allow an arbitrator to grant a divorce, terminate parental rights, grant an adoption or guardianship of a child or incapacitated individual or determine whether a child is dependent or delinquent. Cases in which the arbitrator suspects domestic violence or if there is a domestic violence restraining order are not proper for arbitration and should be referred to court for the protection of the parties.

Many people select arbitration because they choose the arbitrator, whereas in litigation, the judge is randomly assigned. In court, litigants have no control over court delays and scheduling; with arbitration, there is no issue of backlogged court dockets. Litigation can be more expensive than arbitration and by choosing arbitration, participants receive final outcomes in a more expeditious and timely manner. Like a judge, arbitrators make final decisions which are binding on the parties.

Another alternative to litigation is mediation. A mediator acts as a neutral individual who aids the parties in reaching a negotiated agreement resolving the issues in dispute. Mediators do not provide legal advice but try to help people reach a fair middle ground. Mediation is confidential and non-adversarial. Like arbitration, the parties must agree to mediate and must agree on the mediator. The mediator is more a facilitator, and not a decision maker, which is different from the role of an arbitrator. If an agreement is reached, often a mediator will prepare a Memorandum of Understanding, or similar document, which memorializes the parties’ agreement.

Similar to arbitration, mediation is not proper in cases of domestic violence. To be qualified as a mediator, the individual must have at least a bachelor’s degree and practice experience in fields such as law, psychiatry, or psychology and must complete training in mediations, domestic violence, and child abuse. There are continuing educational requirements as well as ethical and insurance requirements for mediators.

A third option available to parties seeking to avoid traditional litigation is collaborative law, which is a voluntary and structured process where divorcing parties agree to resolve disputes without going to court. The parties are represented by attorneys, and there might be a team of other professionals, such as accountants or a mental health specialist, who meet and openly disclose information with the goal being to reach a resolution.

Collaborative law is private, and often faster and less expensive than traditional litigation, and if the process fails, the parties will then go to court. In Pennsylvania, the Collaborative Law Act governs the process and requires that the agreement to collaborate and any final agreement reached be in writing. The collaborative attorneys must be specifically trained in collaborative law.

This is just a brief synopsis of non-litigation alternatives available to resolve family disputes in Pennsylvania. For more comprehensive information, please contact one of Willig, Williams and Davidson’s family law attorneys who can provide a consultation and information to aid you in selecting an alternative dispute resolution option appropriate for your specific situation.