The marriage of family law and private judging in California.

• Author: Nagaraj, Sheila

As court officials, legal assistance professionals, and policymakers work to ensure open access to an overwhelmed public judicial system, (1) a new--and some say dangerous--brand of justice has quietly emerged in the United States. Private judging is a hybrid of traditional litigation and alternative dispute resolution. After consent by all parties and an order from the presiding judge of a public court, the parties may appoint a private decision-maker, usually a retired judge, who hears the parties' arguments and then issues a binding opinion. In some jurisdictions--including California, where private judging was born and has principally developed--these private judges are vested with the authority of public judges, are subject to most of the same legal constraints, and issue judgments that are directly appealable. (2) But like arbitrators, private judges promise speedy, confidential decision-making.

Private judging fills a particularly worrisome gap between public adjudication and arbitration in the family law context. Though such cases often demand the privacy and convenience of arbitration, major issues of family law, including divorce and custody disputes, are off-limits to arbitrators. (3) Thus far, only divorces have been sent to private judges in California. As one author has noted, however, other family disputes are similarly well suited to private judging because few parties are involved and the issues are rarely of public significance. (4)

Instead of being viewed as a "best of both worlds" approach, however, private judging has suffered sharp criticism as it has grown in popularity. Its greatest draw--the confidentiality it offers the parties--is also its most fervently disputed characteristic. Private trials inherently afford litigants a greater degree of privacy because of their limited accessibility to the public and the media. Allegations that some private judges abuse the system and shield information that should be made public have made such enhanced privacy all the more contentious.

Despite the controversy surrounding private judges, S.B. 1015, a bill introduced in the California state legislature, would increase the authority of all judges--including private judges--to further conceal the mechanics of legal proceedings that should be publicly accessible. (5) In light of this legislation and the concerns it raises, I propose a unique solution for private judging that harnesses its privacy and efficiency benefits and simultaneously works toward eliminating its ethical difficulties. I call for the regulation and limited expansion of private judging in the family law context, so as to benefit those who can afford private judges and to help alleviate the burden on public judicial resources. Part I discusses the unique role that private judging plays in the family law context. Part II offers an overview of the drawbacks of private judging. Part III then presents a proposal for the private adjudication of family disputes.

1. THE UNIQUE ROLE OF PRIVATE JUDGING IN FAMILY LAW

   Thirty years after the inception of private adjudication in California, (6) private judges hear cases on a variety of issues, but more than half of the cases involve family disputes. (7) Private judges are seen to be useful in family law cases that require the knowledge, expertise, and power of a traditional judge, but in which the parties seek the efficiency and immediacy of an arbitrator. High-profile, wealthy clients such as billionaire Ronald Burkle and celebrities Brad Pitt and Jennifer Aniston have turned to private judges for their divorce settlements. (8)

   While many authors use "arbitrator" and "private judge" interchangeably, (9) I draw on the important distinctions between the two under California law. First, private judges must be members of the state bar, while there are no restrictions on who may serve as an arbitrator. (10) Second, whereas parties may submit their dispute to an arbitrator without any approval from the court, a private judge may be appointed only after the case has been filed in court and the presiding judge has agreed to send the case to a private judge. (11) Third, the merits of an arbitrator's award (on questions of both law and fact) are unreviewable by a court except in narrow cases as provided by statute. (12) By contrast, the decisions of private judges are directly appealable. (13)

   Perhaps the most crucial difference is that in California, as well as in several other states, arbitrators have been barred from adjudicating most family disputes. (14) Case law suggests that arbitrators are excluded from this area because they are not bound by legal precedent and because their decisions are unreviewable. In the New York case of Glauber v. Glauber, for instance, the court held that child custody disputes are unsuitable for arbitration due to public policy concerns. (15) Private judging, however, does not raise such concerns. Its hybrid nature bridges the gap between public adjudication and arbitration, offering a better forum for resolving family law disputes.

   Unlike arbitrators, private judges bring the accountability and experience of public judging to family law cases. Because private judges are held to the same expectations as public judges, (16) they may be ordered to consider such legal standards...