Washington’s New Uniform Family Law Arbitration Act: Explanation, Application, and Aspiration

BY CHERYLL RUSSELL, JACQUELINE JESKE, AND CHRISTOPHER FOX

Washington’s Uniform Family Law Arbitration Act (UFLAA) provides a framework for the use of arbitration in resolving family law disputes in Washington state. Washington’s UFLAA was adopted in 2023 and became effective Jan. 1, 2024. The 27 statutory sections of the Act contain definitions and establish rules and procedures for conducting family law arbitrations, including the appointment of arbitrators, the scope of their authority, and the enforceability of arbitration awards. 

Washington’s UFLAA is designed to offer parties in family law cases—such as divorce, child custody, and child support disputes—a more efficient and cost-effective alternative to traditional litigation.

Under Washington’s UFLAA, arbitration agreements must be in writing and signed by both parties, and the arbitrator must meet certain qualifications, such as being a licensed attorney and having specific training in family law. The parties may, however, waive some or all of the arbitrator qualifications and criteria. The Act also provides safeguards to ensure the fairness of the process, such as the right to legal representation and the ability to challenge an arbitrator’s award in court under certain circumstances.

In this article, we will briefly summarize the history and intent of both the ULC’s UFLAA and Washington’s UFLAA, address several of the Washington Act’s provisions, reference specific wording of the statute, and identify prior court decisions that may have bearing on interpretation and application of the provisions. We also highlight questions that have arisen since enactment and offer suggestions for attorneys, arbitrators, and court officers in implementing Washington’s Act. 

A BRIEF HISTORY

In 1990, the American Academy of Matrimonial Lawyers (AAML) began promoting the use of arbitration in family law matters. The AAML project was completed in 2005. After four years of study, the Uniform Law Commission (ULC) completed the Uniform Family Law Arbitration Act in 2016. To date, seven states, including Washington, have enacted versions of the Act, each of which is different. 

THE ORIGINAL INTENT

In drafting the UFLAA, the ULC incorporated by reference a state’s existing arbitration law, with specific attention given to family law, such as property division, alimony, and marital agreements. The Act provides for selection and immunity of arbitrators, discovery protocols, attorney fees, and fair and expeditious resolutions. Except as otherwise provided in Washington’s UFLAA, the law applicable to the UFLAA is Washington’s Uniform Arbitration Act, Chapter 7.04A RCW. In deference to jurisdictional differences regarding parens patriae authority, the ULC’s UFLAA presumptively applies to child-related issues but includes a provision for states to opt-out.¹1 The Uniform Law was intended to follow the “trend … of permitting arbitration of child-related disputes so long as courts retain their essential role in overseeing awards affecting children.” Uniform Family Law Arbitration Act § 3 (Scope), Editors’ Notes, Comment. This is consistent with Washington’s history of allowing a state to interfere with parents’ rights to raise their children only in very limited circumstances, where the state seeks to prevent harm or a risk of harm to the child.²2 Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998); In re Custody of A.L.D., 191 Wn. App. 474, 363 P.3d 604 (2015);  H.B.H. v. State, 192 Wn.2d 154, 429 P.3d 484 (2018).

WASHINGTON’S UFLAA—CHAPTER 26.14 RCW 

The provisions of Washington’s UFLAA discussed in this section were selected because of their importance and because, in several instances, they have been subject to differing interpretations and applications by the courts.³3 In drafting this article, the authors consulted with: Professor Barbara Atwood, the Mary Anne Richey Professor of Law Emerita at the University of Arizona College of Law, and Director of the Family and Juvenile Law Program, who served as ULC commissioner, chairing the ULC Family Law Arbitration Act Drafting Committee; Professor Linda Elrod, the Richard S. Righter Distinguished Professor of Law and Reporter for the UFLAA; and Kari Bearman, Legislative Counsel at the Uniform Law Commission. We have suggested possible court-related workarounds and future legislative amendments where it might be helpful.

1. RCW 26.14.070—Qualification and selection of arbitrator

RCW 26.14.070(1) outlines the required qualifications for a family law arbitrator in Washington state.⁴4 RCW 26.14.070 Qualification and selection of arbitrator. Unless waived by the parties in writing, an arbitrator must be: 

1) an attorney in good standing admitted to practice in Washington with at least five years of experience practicing family law and a practice consisting of at least 50 percent family law matters, or be a former judicial officer; and

2) trained in child development, child and juvenile mental health issues, identifying domestic violence and abuse, and trauma-informed practices, with seven hours of such training each year.

Comment: Arbitrators would be well served to complete the minimum annual training in RCW 26.14.070(1)(b), even if they obtain a waiver, as this training was a suggested addition to Washington’s version of the UFLAA by the Washington’s Superior Court Judges’ Association and encompasses more areas of expertise than were originally proposed by the Uniform Law Commission. 

2. RCW 26.14.120—Powers and duties of arbitrator 

(a) New powers

The UFLAA expands the authority of family law arbitrators beyond what was previously outlined in Washington’s Uniform Arbitration Act, Chapter 7.04A RCW, while reserving certain disputes exclusively to the courts. Under the new law, arbitrators can: (1) appoint experts, with costs borne by the parties  (RCW 26.14.120(3)(e)); (2) appoint attorneys or guardians ad litem (GALs) for children (RCW 26.14.120(3)(k) and (j))⁵5 UFLAA offers no guidance as to whether or not an arbitrator may appoint a GAL when there is no pending action.; and (3) implement protective measures to shield parties from harm, harassment, or intimidation (RCW 26.14.120(3)(l)). Additionally, while arbitrators can impose protective measures, they cannot issue, modify, or enforce protection orders as provided in RCW 7.105. This power remains exclusively with the courts, as stated in RCW 26.14.020(3)(b).

Washington’s UFLAA does not, however, provide guidance on several key issues, including: (1) the process for selecting guardians; (2) limits on allocating guardian fees to parties; (3) policies for appointing experts, particularly compared to superior court policies and practices; and (4) procedures for appointments when no case is actively pending. These gaps in the legislation may lead to inconsistencies in arbitration practices and raise questions about the balance between arbitration flexibility and the need for standardized family law procedures.

Comment: Arbitrators should continue to follow local county guidelines and state requirements for the qualification, appointment, and payment of guardians ad litem, RCW 26.14.120(3)(k) & (j), and to utilize the state form at www.courts.wa.gov/forms to define the GAL’s scope of investigation, duty to report, hourly fee, and any caps on payments without advance arbitrator authorization.See form FL All Family 146 Order Appointing Guardian ad Litem for a child.⁶6 www.courts.wa.gov/forms/documents/FL%20All%20Family%20146%20Order%20Appointing%20GAL%20for%20a%20Child_2023_07_RU_FINAL.pdf.

(b) New prohibited powers 

The UFLAA statutorily prohibits arbitrators in family law disputes from:

• Granting divorces/separations: RCW 26.14.020(2)(a) 
• Terminating parental rights: RCW 26.14.020(2)(b)
• Granting adoptions or guardianship: RCW 26.14.020(2)(c)
• Determining dependencies: RCW 26.14.020(2)(d) 
• Issuing, modifying, or renewing Domestic Violence Protection Orders: RCW 26.14.020(3)(h)
• Granting writs/habeas corpus: RCW 26.14.020(3)(e) 
• Deciding personal or subject matter jurisdiction: RCW 26.14.020(3)(f) 
• Determining venue: RCW 26.14.020(3)(g)
• Permanently modifying a parenting plan based on a finding of substantial change in circumstances: RCW 26.14.020(3)(i)

(c) What provisions of the UFLAA can be waived? 

The Model Act does not discuss waivers, with one comment exception relating to a particular arbitrator’s qualifications.⁷7 UFLAA Final Act 2016.pdf. Washington’s UFLAA does not address any provisions that can be waived.  Chapter RCW 26.14 does not specify which, if any, of the required qualifications for an arbitrator can be waived, nor does it state which qualifications must be expressly stated in a written waiver to effectively waive them. The comments to the Model Act, on which Chapter 26.14 RCW is based, note: “The default requirements reflect the importance of the decisions that family law arbitrators make and the need for arbitrators to be sensitive to the presence of family violence.” 

Query: Would a retired attorney on inactive status with domestic violence experience not qualify as an arbitrator because they do not meet the specific requirements of RCW 26.14.070(1)?

Query: Conversely, what if an arbitrator meets the qualifications set out in RCW 26.14.070, but lacks the specific expertise needed for certain complex family law disputes? Such cases might involve business valuations, complex financial matters, complicated trusts, elder care issues, and real estate disputes. In these and like instances, the case may benefit from an arbitrator with specialized knowledge, experience, or reputation in the relevant field, even if they’re not typically a family law arbitrator or qualified under RCW 26.14.070. Note that the comments to the Model Act state, “parties may choose to waive the requirements in selecting a particular individual. Because parties may want an arbitrator with unique expertise, experience, or reputation, this section authorizes parties to select whomever they please.” 

Recommendation: There is some uncertainty (until a Washington appellate court rules) about what can be waived in the statute as well as how to properly waive it. If one or more of an arbitrator’s required qualifications under RCW 26.14.070 are being waived, the authors recommend a clear statement of the reason(s) for the waiver in the arbitration agreement so the waiver may withstand challenges based on lack of intent, coercion, or other grounds. 

RCW 26.14.030 states, “Except as otherwise provided in this chapter, the law applicable to arbitration is chapter 7.04A RCW.” RCW 26.14.020(3) exempts certain proceedings from the application of Chapter 26.14 RCW. Notably, RCW 26.14.902 provides that Chapter 26.14 RCW applies to family law arbitrations under agreements made on or after Jan. 1, 2024, unless the parties agree to its application for pre-2024 parenting plan agreements. 

Comment: Many practitioners consider the pre-2024 parenting plan dispute resolution provisions for arbitration to satisfy the RCW 26.14.040(3)(b) requirement for a court-approved arbitration order. The authors agree, provided the court was aware of the extent of any domestic violence at the time the order was entered, which avoids the need for a separate order. 

Caution: If new domestic violence occurs after the prior final plan was entered, practitioners should still seek the court’s approval and use the model form “FL All Family 193 Order Allowing or Terminating Arbitration – At Risk Party.” Failure to do so may result in the court not affirming and/or enforcing the arbitration award/decision. And the matter will be governed by Chapter 26.14 RCW.⁸8 This issue may require future legislative review for several reasons: (1) the ULC made these recommendations when almost all arbitrations were conducted in person; (2) since the COVID-19 pandemic, most arbitrations have shifted to virtual formats; (3) the current court process for affirming agreements and entering orders has become both an obstacle and a financial burden, especially for parties who have experienced abuse or domestic violence, and this remains true even though court access has changed in many counties; and (4) the ULC members we consulted confirmed that virtual arbitrations were not considered when they made their original recommendations. These changes in arbitration practices and their impacts suggest that the existing legislation may need to be updated to reflect current realities.

3. RCW 26.14.010(4) – What is a child-related dispute?

Simply put, a child-related dispute is any issue that affects a child. RCW 26.14.010(4) defines a “child-related dispute” as a “family law dispute regarding legal custody, physical custody, custodial responsibility, parental responsibility or authority, parenting time, right to access, visitation, or financial support regarding a child.” The term is broad and includes all issues of parenting, child support, post-secondary education, decision making, activities, medical decisions, and more. And, given the breadth of such disputes, it arguably includes peripheral issues such as determining a parent’s income to calculate a child support obligation. Consequently, it may be prudent to define a child-related dispute as any disagreement that could potentially emerge from a parenting plan or child support order.

4. RCW 26.14.130(2) – What constitutes the “record” of an arbitration hearing on a child-related dispute?

When considering arbitration of a child-related dispute, keep in mind that RCW 16.14.130(2) mandates that the arbitrator “shall record, electronically or otherwise, any part of an arbitration hearing concerning a child-related dispute.” Of note, the statute does not define the manner or format of the record, how long it will be retained, who retains it, or where it will be retained. If the arbitration is conducted on written submissions, the written submissions will constitute the record. But if there is testimony or oral evidence, the issues of how to record the evidence, preserve the evidence, and present it to a subsequent judicial officer must be considered and resolved.

When determining the format of the record, it will be necessary to consider how the record can be presented for judicial review at a subsequent motion and/or hearing for review, vacation, amendment, clarification, or modification. There is no current uniform standard among counties or courts regarding acceptable record formats. While court reporters offer the most straightforward solution, and produce the easiest format to submit to a court, using their services adds cost, which contradicts arbitration’s goal of being cost-effective and efficient. The requirement to produce a record may present an access-to-justice issue for low-income parties. Some arbitrators have expressed an intention to provide a flash drive to the parties or to email a link to the audio recording of the Zoom hearing to them. For hearings with oral testimony or evidence, it’s essential for the arbitrator and parties to determine and agree in advance how to record, preserve, and present this information in case it is needed for a future judicial officer. The agreement as to the record should be in the signed arbitration agreement.

As noted, RCW 26.14.130(2) does not specify how long the arbitrator must maintain the record. Some arbitrators have indicated an intent to hold the file for seven days after the hearing, others for a longer period, and some indefinitely. 

Recommendation: Since the statute does not specify how long the arbitrator holds a copy of the record, the authors agree the best practice is to (1) clearly outline the record format (electronic or otherwise) and retention period in the signed arbitration agreement; (2) consider retaining records for one year or until final orders are entered, whichever comes first; and (3) at a minimum, keep records for the 90-day period following notice as per RCW 26.14.180(5). 

5. RCW 26.14.110—Protection of party or child 

RCW 26.14.110(2) provides:

(2) If a party is subject to a protection order or has been convicted of a domestic violence offense, including child abuse, or if an arbitrator determines there is a reasonable basis to believe a party’s safety or ability to participate effectively in arbitration is at risk, the arbitrator shall stay the arbitration and refer the parties to court. The arbitration may not proceed unless the party at risk affirms the arbitration agreement in a record and the court determines:

(a) The affirmation is informed and voluntary;

(b) Arbitration is not inconsistent with the protection order; and

(c) Reasonable procedures are in place to protect the party from risk of harm, harassment, or intimidation.

RCW 26.14.110(2)(a)-(c).

Comment: When any party to an arbitration occurring after Jan. 1, 2024, has an adjudicated protection order, or criminal conviction involving domestic violence or abuse, referral to court is not optional. The authors agree this requires participants and their counsel to err on the side of caution. This may be done by means of a stipulation with the required affirmations by the at-risk party and a proposed order. While it is unclear how individual judicial officers and courts will determine such matters, it is likely they will review any Judicial Information System (JIS) or criminal and civil history for the parties. It is unclear whether they will require an in-person inquiry (whether virtual or not). This provision was created mainly to address safety concerns for individuals testifying in person during proceedings. This intent was confirmed through discussions with several ULC members. 

Chapter 26.14 RCW mandates referral to court upon an adjudication. Thus, where a past protection order has been denied, a mandatory stay does not appear to be required. Stipulated Orders of Continuance (SOCs) pose a thornier conundrum. The typical SOC is a vehicle used in the criminal courts after a domestic violence charge arises and is used to resolve a pending charge with an ultimate dismissal. Once dismissed, it is a final adjudication and would make a stay unnecessary. However, it accomplishes a dismissal by effectively continuing the pending case for a specified period of time (often months) and is often accompanied by a number of conditions to be performed by a defendant, such as domestic violence treatment. Some experts might opine that as the case is not yet “adjudicated,” the existence of an SOC that is domestic violence or child abuse related does not require referral to court or an arbitration stay. An SOC, however, is far short of a final adjudication. A defendant who is subject to such an order and fails to meet their conditions or has a new charge while the continuance is pending can still face adjudication (and likely conviction) based on their stipulation to the police reports contained in most SOCs. A pending criminal charge or SOC raises legitimate concerns given the intent of this provision: protection of vulnerable parties or a child in a child-related dispute. 

Recommendation: When considering arbitration in cases involving domestic violence or child abuse allegations, the authors recommend the following: 

1. Assess risk carefully: Determine if there’s a reasonable basis to believe a party’s safety or ability to participate is at risk, given the pending SOC and specific conditions. 

2. Prioritize court referral: If a criminal case is pending adjudication, even with an SOC, the parties should be referred to court first and comply with the mandatory affirmation process.⁹9 The ULC members we consulted stated that, in their opinion, this particular provision (RCW 26.14.110) cannot be waived.

3. Maintain vigilance: Arbitrators should pay heightened attention throughout the arbitration to ensure the spirit of the Act is not circumvented. 

4. Consider timing: This approach is advisable even if a prior plan mandates arbitration, particularly if the domestic violence/child abuse incident or SOC occurred after the plan’s entry date. 

5. Stay proceedings if concerns arise: If the arbitrator becomes concerned about risks to a party or child during arbitration, they must pause the process and refer the parties to court for review, as per RCW 26.14.110(2).¹⁰10 Id.

The ULC’s UFLAA was developed before the COVID-19 pandemic, when family law arbitrations were typically conducted in person. According to former ULC members involved in drafting the UFLAA with whom we spoke, virtual arbitrations were not considered or discussed during the development process. Since March 2020, the pandemic has significantly impacted legal processes, including a dramatic shift toward virtual arbitrations in Washington. This shift has revealed an unintended consequence of Washington’s UFLAA.

Individuals who have experienced violence or abuse now face additional costs and delays when seeking court permission to participate in virtual arbitrations. The burden is particularly pronounced for these litigants, whether or not they have legal representation or lack the resources to file and seek approval.

This outcome was not the original intent of the drafting committee or the UFLAA. It suggests an area where Washington’s statute might benefit from future legislative action to remove barriers for victims of violence, reduce associated costs, and streamline the process for virtual participation in arbitrations. 

Addressing this issue could align the law more closely with current practices and needs, especially in cases involving vulnerable parties.

6. RCW 26.14.100—Temporary order or award

(a) How are temporary orders affected by Chapter 26.14 RCW?

Prior to selecting an arbitrator, the court may order any temporary relief available under RCW 26.09.060 and .197. After an arbitrator is appointed, RCW 26.14.100 authorizes an arbitrator to make a temporary order granting any relief provided for in RCW 26.09.060 (Temporary Maintenance or Child Support) and RCW 26.09.197 (Temporary Parenting Plan), except for a protection order as defined in RCW 26.14.110. If the arbitrator is not available to act, a party may move the court to enter a temporary order, pending further order by the arbitrator or the court.

Before entering a final award, a court may confirm (RCW 26.14.150), correct (RCW 26.14.170), vacate, or amend (RCW 26.14.180) an arbitrator’s temporary award. The time period for each action is not the same and is addressed in different sections of the statute. Some provisions are mandatory and others are discretionary. 

An arbitrator’s award is not enforceable as a judgment until confirmed. RCW 26.14.150(4). A court shall confirm an award under RCW 26.14.150(2) if the parties agree in a record, or the time to move under RCW 26.14.170 and 26.14.180 has expired and no motion is pending. Therefore, if an award has not been confirmed, it is advisable to include a provision in the final order(s) confirming the arbitrator’s award(s) when they are entered. Otherwise, the authors suggest, some arbitration awards might never undergo official confirmation for reasons including cost, time, or the specific nature of the award. Examples include quick rulings on matters like schedule changes or extracurricular activities, where parents seeking the decision may not need or want formal confirmation.¹¹11 The WSBA Family Law Section Legislative Committee specifically and successfully opposed an earlier provision in the bill that mandated a strict confirmation time period, as many arbitrations involve simple, fast, user-friendly proceedings where no benefit is provided by confirmation.

A party may move the arbitrator to correct an unconfirmed award, not later than 30 days after receiving notice of an award, (1) due to an evident mathematical miscalculation or evident mistake in a description of a person, thing, or property; or (2) the award is imperfect as to form that does not affect the merits; or (3) to clarify the award. 

A party may move the court to correct an unconfirmed award or a corrected award under RCW 26.14.170 provided it is done no later than 90 days after the arbitrator gives notice under RCW 26.14.140.   

A court shall vacate an unconfirmed award under RCW 26.14.180(1) if a party moves and establishes: (a) the award was procured by corruption, fraud, or other undue means; (b) the arbitrator was partial or corrupt or engaged in misconduct that substantially prejudiced the party’s rights; (c) the arbitrator refused to postpone a hearing or refused to consider evidence; (d) the arbitrator exceeded the arbitrator’s powers; (e) no agreement existed unless the party participated in the arbitration without moving under RCW 26.14.060 prior to the first arbitration hearing; or (f) the arbitration was conducted without proper notice that substantially prejudiced the party. And a court shall vacate an unconfirmed award that determined a child-related dispute if (a) the award does not comply with RCW 26.14.140, (b) is contrary to the child’s best interest, (c) the record is inadequate to review the award, or (d) a ground exists under RCW 26.14.180(1).¹²12 RCW 26.14.180(4) (court has authority to vacate or amend an unconfirmed decision). And a court may amend an award subject to vacation rather than vacating it if amending is in the child’s best interest. 

7. De novo review under the UFLAA

In general, while Washington allows for arbitration in family law matters involving children, it has put safeguards in place to ensure that courts can thoroughly review these arbitration awards. This approach balances the benefits of arbitration (such as potentially faster and less adversarial resolution) with the state’s responsibility to protect children’s interests.

The Uniform Arbitration Act (Chapter 7.04A RCW) generally governs judicial review of arbitration awards, providing only limited grounds for courts to vacate, modify, correct, or confirm awards. While the Uniform Arbitration Act does not explicitly include parenting plan disputes, its broad language could reasonably be interpreted to cover such disputes. However, the Legislature has adopted the UFLAA, Chapter 26.14 RCW, to specifically govern arbitration of child-related disputes, including parenting issues. 

RCW 26.14.150(3) outlines the conditions under which a court shall confirm an arbitration award in a child-related dispute. This provision requires the court to review the record and determine if the award: (a) complies with RCW 26.14.140 and other applicable state laws, and (b) is in the best interests of the child. This requirement for the court to review the record and assess the best interests of the child suggests a more comprehensive review than just examining the face of the award. This expands the court’s ability to scrutinize child-related arbitration awards. The use of “shall” in RCW 26.14.150(3) makes this review mandatory. 

Arbitration decisions are reviewed “de novo.” The applicable law under the UFLAA is RCW 26.14.030(1). Consequently, all case law issued prior to the UFLAA (Jan. 1, 2024) decided under RCW 7.04A is the applicable case law to apply under the UFLAA. Historically, de novo review means reviewing the submissions and decision without placing any weight on the previous court findings or decision. 

Washington law strongly favors arbitration, and courts accord substantial finality to arbitration awards rendered pursuant to the parties’ agreement and RCW 7.04A.¹³13 Davidson v. Hensen, 135 Wn.2d 112, 954 P.2d 1327 (1998). Accordingly, judicial review of an arbitration award is exceedingly limited.¹⁴14 The case law is somewhat limited because most cases on this subject are unpublished. A court may disturb an award only on the narrow grounds listed in RCW 7.04A.230(1) and only when those grounds appear on the face of the award.¹⁵15 Westmark Props., Inc. v. McGuire, 53 Wn. App. 400, 766 P.2d 1146 (1989). And the UFLAA allows limited expansion of the narrow grounds developed under case law.¹⁶16 Marriage of Pascale, 173 Wn. App. 836, 295 P.3d 805 (2013): “Any doubts regarding the applicability of an arbitration agreement ’should be resolved in favor of coverage.’”

In an appeal from an arbitrator’s award, “an appellate court is strictly proscribed from the traditional full review.”¹⁷17 Barnett v. Hicks, 119 Wn.2d 151, 829 P.2d 1087 (1992). Accordingly, the court’s review of an award is confined to a review of the decision by the court that confirmed, vacated, modified, or corrected that award.¹⁸18 Expert Drywall, Inc. v. Ellis-Don Constr., Inc., 86 Wn. App. 884, 939 P.2d 1258 (1997).

An arbitrator exceeds his/her authority within the meaning of RCW 7.04A when the arbitration award exhibits a facial legal error.¹⁹19 Broom v. Morgan Stanley DW, Inc., 169 Wn.2d 231, 236 P.3d 182 (2010). The facial legal error standard is a “very narrow ground for vacating an arbitral award” that furthers the “purposes of arbitration” while preventing “obvious legal error.”²⁰20 Broom, supra note 18.  Further, the facial legal error standard does not extend to a potential legal error that depends on the consideration of the specific evidence offered or to an indirect challenge to the sufficiency of the evidence. Courts are not permitted to conduct a trial de novo when reviewing the award: they “do not look to the merits of the case, and they do not reexamine evidence.” “The error should be recognizable from the language of the award.”²¹21 Salewski v. Pilchuck Veterinary Hosp., Inc., 189 Wn. App. 898, 359 P.3d 884 (2015); Cummings v. Budget Tank Removal & Envt’l Servs., LLC, 163 Wn. App. 379, 260 P.3d 220 (2011)).

In the absence of an error of law on the face of the award, the arbitrator’s award will not be vacated or modified.²²22 Boyd v. David, 127 Wn.2d 256, 897 P.2d 1239 (1995); Lindon Commodities, Inc. v. Bambino Bean Co., 57 Wn. App. 813, 790 P.2d 228 (1990). Therefore, judicial review of an arbitration award does not include a review of the merits of the case.”²³23 Davidson v. Hensen, supra note 12. Judicial review of an arbitration award is usually limited to the face of the award.²⁴24 Boyd v. David, supra note 21.

CONCLUSION

By adopting the UFLAA, Washington’s Legislature has reinforced its policy that courts should have ultimate responsibility over parenting disputes.²⁵25 Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 929 P.2d 1204 (1997); In re Parentage of Smith-Bartlett, 95 Wn. App. 633, 640, 976 P.2d 173 (1999). The UFLAA follows the trend of allowing arbitration for child-related disputes but ensures that courts maintain their essential role in overseeing awards that affect children. Washington’s UFLAA aims to protect the court’s parens patriae power—its duty to protect children’s interests—by providing for “robust judicial scrutiny” of child-related arbitration awards. 

NOTES

1. The Uniform Law was intended to follow the “trend … of permitting arbitration of child-related disputes so long as courts retain their essential role in overseeing awards affecting children.” Uniform Family Law Arbitration Act § 3 (Scope), Editors’ Notes, Comment. 

2. Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998); In re Custody of A.L.D., 191 Wn. App. 474, 363 P.3d 604 (2015);  H.B.H. v. State, 192 Wn.2d 154, 429 P.3d 484 (2018).

3. In drafting this article, the authors consulted with: Professor Barbara Atwood, the Mary Anne Richey Professor of Law Emerita at the University of Arizona College of Law, and Director of the Family and Juvenile Law Program, who served as ULC commissioner, chairing the ULC Family Law Arbitration Act Drafting Committee; Professor Linda Elrod, the Richard S. Righter Distinguished Professor of Law and Reporter for the UFLAA; and Kari Bearman, Legislative Counsel at the Uniform Law Commission.

4. RCW 26.14.070 Qualification and selection of arbitrator. 

5. UFLAA offers no guidance as to whether or not an arbitrator may appoint a GAL when there is no pending action. 

6.www.courts.wa.gov/forms/documents/FL%20All%20Family%20146%20Order%20Appointing%20GAL%20for%20a%20Child_2023_07_RU_FINAL.pdf.  

7. UFLAA Final Act 2016.pdf.  

8. This issue may require future legislative review for several reasons: (1) the ULC made these recommendations when almost all arbitrations were conducted in person; (2) since the COVID-19 pandemic, most arbitrations have shifted to virtual formats; (3) the current court process for affirming agreements and entering orders has become both an obstacle and a financial burden, especially for parties who have experienced abuse or domestic violence, and this remains true even though court access has changed in many counties; and (4) the ULC members we consulted confirmed that virtual arbitrations were not considered when they made their original recommendations. These changes in arbitration practices and their impacts suggest that the existing legislation may need to be updated to reflect current realities.

9. The ULC members we consulted stated that, in their opinion, this particular provision (RCW 26.14.110) cannot be waived. 

10. Id.

11. The WSBA Family Law Section Legislative Committee specifically and successfully opposed an earlier provision in the bill that mandated a strict confirmation time period, as many arbitrations involve simple, fast, user-friendly proceedings where no benefit is provided by confirmation.

12. RCW 26.14.180(4) (court has authority to vacate or amend an unconfirmed decision).  

13. Davidson v. Hensen, 135 Wn.2d 112, 954 P.2d 1327 (1998). 

14. The case law is somewhat limited because most cases on this subject are unpublished. 

15. Westmark Props., Inc. v. McGuire, 53 Wn. App. 400, 766 P.2d 1146 (1989).

16. Marriage of Pascale, 173 Wn. App. 836, 295 P.3d 805 (2013): “Any doubts regarding the applicability of an arbitration agreement ’should be resolved in favor of coverage.’”

17. Barnett v. Hicks, 119 Wn.2d 151, 829 P.2d 1087 (1992).

18. Expert Drywall, Inc. v. Ellis-Don Constr., Inc., 86 Wn. App. 884, 939 P.2d 1258 (1997).

19. Broom v. Morgan Stanley DW, Inc., 169 Wn.2d 231, 236 P.3d 182 (2010).

20. Broom, supra note 18. 

21. Salewski v. Pilchuck Veterinary Hosp., Inc., 189 Wn. App. 898, 359 P.3d 884 (2015); Cummings v. Budget Tank Removal & Envt’l Servs., LLC, 163 Wn. App. 379, 260 P.3d 220 (2011)).

22. Boyd v. David, 127 Wn.2d 256, 897 P.2d 1239 (1995); Lindon Commodities, Inc. v. Bambino Bean Co., 57 Wn. App. 813, 790 P.2d 228 (1990). 

23. Davidson v. Hensen, supra note 12.

24. Boyd v. David, supra note 21.  

25. Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 929 P.2d 1204 (1997); In re Parentage of Smith-Bartlett, 95 Wn. App. 633, 640, 976 P.2d 173 (1999).  

---