Friday, December 30, 2005

Case Law Development: Flexibility in Divorce Arbitration Procedures Permitted

Couples are increasingly turning to arbitration to decide issues in their divorce.  In the past year, a number of state supreme courts have addressed the issues that arise in enforcement of arbitration awards.

This past week, for example, the Michigan Supreme Court upheld a divorce judgment based on an arbitrator's decision, reversing the court of appeals which had held that the arbitration was improper because it lacked a formal hearing and the parties had not entered into a separate written arbitration agreement. 

The parties stipulated to the court's entry of a particularized order for binding arbitration. The order listed the issues for arbitration and delineated the arbitrator's powers and duties. Thus, the court held it sufficient to satisfy the statutory requirements of a written arbitration agreement, as no separate writing is required by statute.  Regarding the hearing, the arbitrator had, with the agreement of the parties, conducted a "shuttle" hearing (keeping the parties in separate rooms and gathering evidence and argument from each separately, then issuing the award). The court held that this procedure did not violate the arbitration act.  "[The Michigan Domestic Relations Arbitration Act] does not define the term "hear" or "hearing." Moreover, it sets no procedural requirements for arbitration. Rather, it specifically eschews them.... Plaintiff presents no convincing argument that the Legislature intended all DRAA hearings to approximate traditional court hearings. We know of none."

Miller v. Miller, 2005 Mich. LEXIS 2654 (December 28, 2005)  Opinion on the web (last visited December 28, 2005 bgf)

http://lawprofessors.typepad.com/family_law/2005/12/case_law_develo_32.html

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