There are a lot of benefits to moving family law cases out of the public court system and into the private arena: to have cases heard more quickly, to potentially reduce overall fees in the case (hear me out on this one), to ensure that the private judicial officer or arbitrator has the time to dedicate to voluminous pleadings and that an experienced professional of your choice is at the helm for your entire case, and, sometimes, simply to have cases decided in more private and comfortable surroundings for clients who so wish it. However, when I ask my clients if they are interested in appointing a private judge in their case, I am frequently asked, “Do you mean arbitration?” And the answer is, while the two options may appear similar, no, they are not the same.
Background on Arbitration
Entering into arbitration is the commitment to present your case to a private arbitrator (who may or may not be a retired judicial officer), have them make a decision, and then live with that decision. Arbitration is a less formal process, and proceedings are generally regulated by the procedural rules established by the arbitration agency, not necessarily the rules of civil procedure, evidence, or even the formal disclosure requirements under the Family Code in your jurisdiction. Arbitration is also confidential, which keeps potentially embarrassing evidence out of the public record. However, despite the attraction of having the more relaxed structure and the confidentiality of arbitration, arbitration may not be a viable option depending on your client or the issues in your case.
First, arbitration is not appealable. Once the arbitrator makes his or her decision, it is final, except in very limited circumstances. This is due in large part to the confidential nature of the arbitration and because, as mentioned, it does not necessarily follow the rules of evidence and civil procedure of your jurisdiction. Therefore, if your client is committing to arbitration, they need to do so with the fully informed knowledge that they are stuck with whatever the arbitrator decides. This can be scary and off-putting to many clients, particularly if the issues in the matter are complex or there is a lot to lose.
Further, while the more informal rules of arbitration, including not necessarily adhering to formal rules of disclosure, may allow matters to be resolved more quickly and cost-effectively, the decision of the arbitrator may not be able to be reduced to a judgment if the disclosure requirements set forth under the laws of your jurisdiction are not followed. In most jurisdictions, full and complete financial disclosure is paramount in reaching a final, enforceable judgment in a dissolution, even if the case is arbitrated. Therefore, compliance with the financial disclosure requirements of your jurisdiction, regardless of how much the parties want to get away from them, are unavoidable.
Another issue with using arbitration to resolve family law disputes arises when there are child custody or child support provisions involved in your matter. While the finality of arbitration may be a detractor to some, it may be the primary draw for others. However, in most jurisdictions, arbitrators cannot make binding decisions regarding child custody or support—if those issues are allowed to be arbitrated at all. Almost every jurisdiction follows the credo that the best interest of children is paramount and cannot be permanently circumvented by a private agreement between the parents. Therefore, no arbitration decision will ever be “final” when it comes to issues related to the parties’ children.
While the benefits of confidentiality and more informal proceedings may make arbitration appealing, clearly there are drawbacks. Where I practice in Los Angeles, we rarely arbitrate our cases because in California, and in an increasing number of other jurisdictions (e.g., New York, Texas, Ohio, and Indiana), there is an alternative to arbitration if your client does not wish to proceed in the public courts.
Appointing a Private Judge
In the jurisdictions that allow it, clients can stipulate that their case be heard by a private judicial officer for all purposes, a judge pro tem, who is compensated by the litigants. Appointing a private judicial officer is the process of selecting a professional of your choice, subject to the required qualifications of your jurisdiction, to imbue with all the rights and responsibilities of a judge actively on the bench. Unlike arbitration, the parties are expected to follow all the same procedural and evidentiary rules as they would if they were in court. Hearings are conducted on the record, and the decisions of the private judicial officer, while binding, are subject to appeal. So, if it is essentially the same as having a judge on the bench, what is the allure? It has many of the same benefits as arbitration, without committing your client to an unappealable decision: consistency, time, money, privacy, comfort, accessibility, and experience.
Consistency All the Way Through
If you are not in a “one case, one judge” jurisdiction, you will have experienced the frustration of knowing that the judge who has come to know your case and the parties during the pendente lite phase of the matter is likely not going to be your trial judge who makes the ultimate decisions. Not only is this frustrating from a time and cost perspective, as you will now have to spend time during trial educating the judge as to the facts of the case, it can also be disheartening if you felt like your interim judge “really got” what was going on behind the scenes with the parties—especially if you feel that your client has been in the right throughout the case. If you decide to appoint a private judge for all purposes at the beginning of your case, you are ensuring that your selected private judge will be your judge all the way through trial. While this can be a double-edged sword if your client turns out to be the “wild card,” it is ultimately beneficial to avoiding the necessity of educating a judge who has only come in at the end of the case.
Another potential benefit to appointing a private judge is that you may elect, depending on the rules in your jurisdiction and if the parties and judge agree, to have that judge also act as a mediator in your case. In my experience, when clients do agree that the private judge that they have appointed for all purposes can also act as a mediator in a settlement conference, it is very motivating for both parties to successfully reach a global agreement. While the judge is, of course, wearing a different “hat” as a mediator, and will not be allowed to consider any of the positions, contentions, or facts brought up during mediation unless they are also correctly admitted as evidence at the ultimate trial, it is almost impossible for clients not to be aware that the person mediating—the person telling them that a proposed settlement is reasonable or what they are risking if they go to trial—is also ultimately the person who is going to decide their case.
Time = Money
A unique, and potentially controversial, element to a privately appointed judge is that they are compensated by the parties, adding yet another billing professional into the mix. But the old adage, “Time is money” is particularly true when it comes to lawyers. The longer something takes, the more costs your clients will incur. Which is why, despite the added cost of hiring a privately compensated judicial officer as opposed to your client availing themselves of the free services of the public bench officers, your client may ultimately spend less. As with arbitration, when hiring a private judge you are appointing a private person to oversee and decide your case, someone who is largely committed to working on your schedule. It is no secret that courts all around the country are slammed and dockets are massively overflowing. While public judges do their best to move cases through the system as quickly as possible, a single judge will have a multitude of cases to get through on any given day between ex-parte applications, in pro per litigants, and the overload of new requests being filed daily. An interim request for orders may not be set for up to eight weeks or longer after the filing date. Even then, on the day of your hearing, you may spend all day waiting to be called, with the clock ticking on your client’s bill, and then only have 15–30 minutes to present your case—or worse, you may find yourself being pushed out to another day entirely after waiting in the courtroom for hours. A final trial may not be set for months or longer after declaring ready yourself for trial and, even then, it may not be set on consecutive days. A five-day trial may take weeks to complete, depending on the court’s calendar and availability.
A privately compensated judicial officer, meanwhile, will typically be able to set hearings promptly along the civil procedure guidelines. You will likely be their only client on that day, the hearing will start on time, and you will be given whatever time is necessary to present your case in full. Trials will be set promptly upon the parties’ declaring ready to move forward and largely move forward on consecutive days. This elimination of waiting at the public courthouse to be heard, of the weeks before hearings and trials are set where clients bleed fees in a slow death of a thousand cuts, may result in the total cost to the clients being less than if they remained in the public system, even with the added cost of compensating the private judge.
However, make no mistake, there is an added cost to hiring a private judge that your client may not want to pay, and there is no guarantee that going private will actually be less costly than moving forward in the public system. The cost benefit analysis of whether going with a private judge or staying in the public system is ultimately going to be more or less costly to your client will vary wildly from case to case depending on the complexity of the issues, the relationship between the parties (e.g., how well are they getting along or whether they need to litigate every disagreement), the opposing counsel, and many other issues. It is also extremely important when appointing a private judge that the stipulation for appointment is very specific as to how the fees will be shared between the parties. The last thing you want is to get halfway through a case, for a dispute to arise because of imprecise language in the stipulation for appointment, your hand-picked private judicial officer to recuse themselves from the case due to lack of payment, and the conflict in having to make an order as to which party needs to pay him or her. The jurisdictions that allow the appointment of private judicial officers typically have very detailed rules about what must be included in the stipulation for appointment, so be cautious and diligent in complying with such rules.
More Private, But Not Confidential
A major concern to our clients, and hence the appeal of arbitration, is privacy. Yes, arbitration provides confidentiality in a way proceeding before a private judicial officer does not. But, as I explained above, arbitration has its own risks and downsides. Proceeding with a private judge, while not confidential in the same sense as arbitration, does tend to afford litigants more privacy than simply proceeding with a public court hearing, while still preserving the right to appeal the decision. Unlike dissolution hearings in a public courtroom, which are conducted via open session, except in very limited cases, hearings before a private judicial officer are typically held in a private office or even remotely, with no members of the public sitting in and listening to the proceedings. Private court reporters create a record of the hearing, which makes it more difficult for members of the public or press to simply order a transcript. Yes, the pleadings and orders of the private judicial officer are still publicly filed, but as the hearings are conducted privately, many of the details that went into the judge making such orders are not as readily available to the public. Overall, there is a much greater degree of privacy in proceeding with a private judicial officer than in a public courtroom.
A benefit of appointing a private judge or an arbitrator is the vastly superior accessibility of private professionals versus a public bench officer. Either a private judge or arbitrator can be contacted directly by counsel (subject to the rules regarding ex parte communication) in ways public bench officers cannot. Typically, counsel can email a private judge directly regarding scheduling, ex parte applications, and case management issues, which can be quickly addressed. That is simply not possible when the case remains in the public system, which again leads to delays and an increase in costs to clients who remain there.
Hire the Experts
Another benefit to appointing arbitrators and private judges is your ability to select a professional with qualifications unique to your client’s case. The general qualification requirements as to who can be appointed as a private judicial officer vary between jurisdictions. For example, in California, a private judge may be either a retired judicial officer or a member of the bar in good standing. Cal. Rules of Court 2.831. Meanwhile, in Indiana, only a retired judicial officer with at least four consecutive years on the bench who is admitted to the bar in Indiana and still a resident of the state can be appointed as a private judge. IC 33-38-10-2. Regardless of the specific qualifications of your jurisdiction, you are likely choosing either a retired judicial officer or experienced practitioner with decades of experience in family law. And the key word here is “choosing.” Yes, the parties need to agree on whom to appoint. However, this still provides significantly more autonomy in deciding who is ultimately going to decide their case than staying in the public system, where judges of varying backgrounds and experience are randomly assigned to cases, and you have limited ability to remove yourself from being in front of a judge who you do not believe is necessarily appropriate for your case. The benefit of appointing a private judge with guaranteed expertise in family law and all its intricacies, as opposed to a public judge who may just be experiencing family law for the first time on the bench, cannot be overstated, particularly if your case involves complex family law issues.
The Flip Side of Going Private: Be Aware of Conflicts, and Ensure Disclosures Are Made
I have spent most of this article expounding the benefits of “going private”; however, this would not be a full discussion of arbitration versus the private judiciary versus the public judiciary if I did not address the issue of potential perceived conflicts of interest that can arise by choosing to take a case out of the public system. Both arbitrators and private judicial officers are just that—private. They are operating a business in which they ostensibly rely on attorneys leaving the case believing that the arbitrator or private judicial officer did a good job, so that they will come back to them with future cases. Typically, reputable private judges and arbitrators end up working with the same firms and attorneys over and over again. There are, of course, disclosure requirements to ensure that clients know who their potential arbitrator or private judge has done business with in the past and to ensure that the client is still comfortable moving forward with that professional knowing the history of their relationship with the other side. However, in making these disclosures and asking for informed consent, your client may wonder how likely a private judge or arbitrator is to make a decision against the other side, such as granting or denying a large attorney fee award or sanctioning the other side for egregious behavior, if the client believes that the judge or arbitrator has an incentive for the other attorney to “like them” so that they will use them in future cases. This is where trusting in the integrity of your chosen private professional comes into play. In my experience, when you are choosing a private professional to act as an arbitrator or private judge, if you are choosing thoughtfully, you are selecting someone with a good reputation and multitude of experience in your area who is in the position they are in because they have acted with integrity, fairness, and intelligence over the years. Further, just as a private judicial officer or arbitrator who refuses, for example, to make a justified fee or sanction award to “preserve” the relationship they are trying to build or maintain with one attorney, such refusal could potentially damage the relationship they have or are attempting to build with the attorney who made such a justified claim. This is also where a client may be more comfortable choosing a private judge over an arbitrator, given that the decisions of a private judge are still appealable if you or the client really believes that their decision was an abuse of discretion. Ultimately, while this is a concern that may be raised by a client, it will likely be assuaged if you are able to express to them the faith you have in the integrity of your chosen professional, so choose wisely.
Helping Your Client Make the Right Choice for Their Case
If your client has made the decision that they do not wish to proceed in the public court, choosing between arbitration or appointing a private judge will be dependent on the facts of your case and what is available in your jurisdiction. If there are child custody and child support issues, if your client would like to preserve the right to appeal, or if there are complicated estate or disclosure issues, appointing a privately compensated judicial officer to act as a judge for all purposes in your case is likely your best course of action. Arbitration, on the other hand, may be a better fit if child custody and child support issues are not involved in your case, your client is comfortable with the decision being final, the parties do not have a complicated estate, or you are using arbitration solely for the determination of a discreet, bifurcated issue. The following chart further illustrates the differences between resolving a family law matter via arbitration, a private judge, or the public system. Regardless of whether you choose an arbitrator or private judge, it is important to select someone with the requisite family law experience to be able to handle your matter effectively.
If your client wants to move forward with arbitration, check the disclosure requirements in your jurisdiction to have an arbitrated decision entered as a judgment and comply with them before the case is submitted to the arbitrator for a final decision.
Ensure your client is well informed, preferably in writing, as to the pros and cons of proceeding via arbitration, specifically:
- The finality of an arbitrated decision and the inability to appeal;
- The lack of adherence to formal rules of evidence and procedure, which may be appealing to some (i.e., the “in-spouse”) but unappealing to others (i.e., the “out-spouse”); and
- The fact that no rulings or decision made regarding child custody or child support can ever be considered “final.”
When choosing either an arbitrator or private judicial officer, ensure they are sufficiently experienced in family law and have a trustworthy reputation.
Ensure that your client is well informed, preferably in writing, as to the pros and cons of proceeding via a private judge, specifically:
- The ability to appeal;
- The cost-benefit analysis, i.e., that it might cost more or less, but regardless will have your case resolved sooner than proceeding publicly;
- The greater privacy versus a public proceeding, but that it is still not confidential; and,
- No guarantee of a favorable outcome, but a guarantee that the matter will be heard by judge with extensive family law experience with the time to devote to your client’s matter.
Ensure that your client receives and signs off on potential conflict disclosures from the arbitrator or private judicial officer prior to stipulating to the appointment.
When appointing an arbitrator or private judicial officer, ensure that the stipulation for appointment is in full compliance with the rules of your jurisdiction, including being very specific about how that professional will be paid all the way through the conclusion of the matter and what happens if someone refuses to pay.
Melinda Johnson, The Private Judge: California Anomaly or Wave of the Future, Int’l Acad. of Family Law.
Michael S. Fields, Private Judging with a Stipulated “Temporary Judge”: An ADR Alternative, Advocate Mag., Sept. 2022.
Hon. Patrick J. Mahoney, Advantages of Private Judges: Understanding the Benefits of Utilizing Private Judging in California, JAMS ADR Insights, Sept. 1, 2015.