*1 v Miller MILLER MILLER v 15, 2004, January at Detroit. Decided No. 242470. Submitted Docket 30, 2004, sought. appeal 9:00 a.m. Leave to November at Wayne sought in Debra L. Miller a divorce from John T. Miller the case, Following efforts to settle the Circuit Court. unsuccessful court, J., binding Mary Kelly, stipulated entered a order for Beth (DRAA), arbitration under the domestic relations arbitration act final, seq. presented After the a MCL 600.5070 et award, plaintiff binding arbitration moved to set the award arbitrator, claiming appoint aside and a new that there was no arbitration, agreement by parties binding and that the hearing, a arbitrator failed to meet with the conduct required by judgment DRAA.The court a divorce that entered subsequently incorporated the arbitration award and denied plaintiffs appoint aside the award and a motion to set arbitration plaintiff appealed. The new arbitrator. Appeals The Court of held: refusing The trial court erred in to set aside the arbitration hearing requires before a neutral award. The DRAA a full and fair gives rights by litigation party up in arbitrator. A who afforded deprived exchange for arbitration cannot be hearing knowing voluntary full a and fair absent waiver right. parte meetings parties and at Ex with the efforts settlement, mediation, diplomacy,”such as occurred in or “shuttle case, satisfy requirement not the DRAA’s of a full and fair do
hearing. remanded; arbitration award vacated. Reversed J, unfairly dissenting, the arbitrator did not stated that evidence, deny plaintiffs requests, refuse to hear her or hearing unfairly. that the conduct the There was no indication authority procedures exceeded the arbitrator’s arbitration, require impartiality. lacked The DRAAdoes not manner, only including hearing, any specific but be conducted requires in accordance with the arbitrator to conduct the procedure parties’ agreement. afforded the The followed protective rights, including a full and fair basic majority holding Appellate review of arbitration is limited. departs language plain existing prece- from the of the DRAAand dent, public policy disrupt and creates threatens to process. may appeal Parties now arbitration awards on grounds procedure leading that the nebulous to the award was “hearing” not a with no record for this Court to review. The *2 arbitration award should be affirmed. Hearing. — — Arbitration Domestic Relations requires Arbitration under the domestic relations arbitration act hearing full fair that a be conducted before a neutral arbitra- tor; parte meetings parties settlement, ex with the and efforts at mediation, diplomacy” satisfy requirement and “shuttle do not (MCL hearing seq.). of a full and fair 600.5070 et Donald M. plaintiff. Fulkerson for the Dennis T. Donahue and Gentry Law P.C. Offices, (by Gentry), Kevin S. for the defendant. EJ.,
Before: JJ. SMOLENSK, KELLY, SAAD SAAD,
I. NATUREOF THE CASE
After
case,
unsuccessful efforts to settle this divorce
the trial court entered
stipulated
order
for
arbitration under Michigan’s Domestic Relations Arbi-
(DRAA).1
tration Act
Pursuant
to the express terms of
order,
the trial
court’s
understood that this
litigation would be arbitrated pursuant
to the DRAA.
Yet, rather than conducting a hearing, as that
term is
by
Legislature,2
used
our
the arbitrator
instead at-
seq.
MCL 600.5070 et
(Rev.
Dictionary
1968),
“Black’s Law
4th ed.
defines a
as a
‘
* * *
[proceeding
formality
of relative
with definite issues of fact or of
* * *
popular sense,
to be tried
law
much the same as a trial..
..’ In its
applies
proceeding
judge
term
magistrate
formal
before a
or other
exercising judicial
Fine,
Marriage
function.” In re
Ill
3d
(1983).
877;
Accordingly,
appeal
the sole issue
an
litigant
relations
is bound
“arbitral
domestic
a hearing,
if the
does not conduct
but
award”
in
effort to
parte
with the
ex
instead meets
way,
question
the case. Put another
settle
the “arbi-
the trial court should have vacated
whether
the arbitrator
failed to follow the
tral award” because
of the DRAA.
unambiguous provisions
clear,
DRAA,
mandatory language
Under the
litigants
give up
rights
who
the numerous
afforded
general
litigation
circuit court and instead choose
*3
difference,
ordinarily
implies
dispute,
“An
a
and involves
a
hearing
thereby implied.
right
hearings,
The
and all
to notice of
produced
implied
produce evidence and cross-examine that
when the
dispute
matter
decided is one of
and difference.” Omaha v Omaha
to be
(1910).
Co,
180, 194;
615;
218 US
30 S Ct
H. FACTSAND PROCEEDINGS Because our opinion only deals with the denial of plaintiffs statutory right DRAA, to a hearing under the we will forgo usual recitation of regarding facts Rather, divorce. the relevant exclusively facts here deal with the nature of the proceedings and the arbitration.
Plaintiff filed for in January 2001, divorce and the court an in attempted camera settlement conference 10, with the on parties October 2001. The court held a 26, further settlement 2001, conference on October scheduled another settlement conference for November 30, 2001, informing they if could not date, reach a settlement the matter would be 4, referred to arbitration. On 2001, December the trial court entered a stipulated binding order for of all issues of the divorce.3
The “arbitration”4 took on place February 2002. separated the parties into two rooms and attempted to resolve certain contentious issues between the parties. According to plaintiffs testimony, the arbi- trator if explained that the “arbitration” was not fin- stated, part, “[b]y approval The trial court’s order in relevant of this entry by Court, respective attorneys, Order for and their pursuant provisions DRAA], [the [sic] the Court refers all issues in this civil action to arbitration.” quotes because, We use the term “arbitration” in here as we make *4 opinion, regard clear in this we do not the arbitrator’s efforts to settle equivalent this case to be the of arbitration. We find it difficult to find the right phraseology to describe what arbitrator did here. Arbitration Miller day, ished he would use the initial session as a fact-finding proved and, mediation session if this unsuccessful, he would schedule future dates for an hearing. According plaintiff, arbitral the arbitrator procedure proved said that if the initial ineffective, he proceed would with formal arbitration with the usual testimony through introduction of and documents wit- point proceedings, nesses. At some the arbitrator plaintiff attorney advised and her that defendant had to leave to return to Colorado and that the arbitrator attempt would to resolve the matter without fur- hearing response, plaintiff says ther dates. In that she requested additional arbitration sessions so that she present could her case and witnesses and cross-examine Despite request, defendant. the arbitrator did not hearing. April schedule an arbitral Instead, 1, 2002, on proposed the arbitrator issued a award without sched- uling any providing further sessions without opportunity for direct or cross-examination Upon receiving or the introduction of exhibits. proposed plaintiffs again requested award, counsel hearing present plaintiffs additional dates to case. Among many complaints plain- other substantive regarding proposed plaintiff vigor- tiff had award, ously complained totally that the failed to comply with the DRAA his failure to hold a April presented 10, On final, the arbitrator ordered, place was but no arbitration took in the traditional sense of the place, word in, because no took no witnesses were sworn and no testimony sought was taken. Plaintiff additional “sessions” because she present wanted the chance commonly her case in the manner defined as an arbitration. The arbitrator’s efforts at settlement mimicked the procedure mediation, known as but he nonetheless characterized the “proceeding” “hearing.” in his “award” as a It is little wonder that plaintiff, simply present case, define, who asked to her found it difficult to understandably objected to, transpired day but nonetheless what on the expected present she her case to an arbitrator. *5 APP MICH 497 264 Opinion the Court re- said that award”
binding “arbitral outlined objections many of the substantive flected never plaintiff was objection except plaintiff, to a statutory right her afforded 2002, filed a motion to set aside plaintiff On April a new arbitrator. appoint and to the “arbitral award” failed to asserted, correctly, that the arbitrator Plaintiff and for the in the manner meet with DRAA,5 failed to conduct a specified by purpose main- act.6 Plaintiff also required to proceeded the matter tained, again correctly, stipula- mandated statutorily without MCL 600.5071. binding arbitration. agreement tion for 24, 2002, arguments the trial court heard May On objections judgment and entered a rejected plaintiffs On the “arbitral award.” incorporated divorce denying an order 21, 2002, the trial court entered June the “arbitral award.” This motion to set aside plaintiffs errone- the trial court’s followed and we reverse appeal the award for plaintiffs denial of motion set aside ous the reasons stated below.
III. ANALYSIS and court rules years, Michigan’s statutes many For spe- in not general,7 but rules for arbitration provided And, although relations matters. cifically for domestic in domestic the use of arbitration approved this Court guide- not matters, provide our case law did relations 5 MCL 600.5076. 600.5074(1) appointed provides: under “An arbitrator MCL for shall hear and make chapter on each issue submitted award added.) (Emphasis . ...” (court (arbitration statute); seq. rule See MCL 600.5001 et MCR 3.602 arbitration).
governing Miller v Opinion Court Dick, lines these arbitrations. See Dick (1995). 576; 534 NW2d 185 Legislature noted the absence of procedures safeguards for fair arbitral hearings domestic rela- and, tions encourage matters domestic relations litigants give their up litigation rights and choose binding arbitration, responded by enacting the DRAA.8 FOR BINDING
REQUIREMENTS ARBITRATION THE UNDER DRAA provides The DRAA numerous process proce- due *6 dural protections to a domestic party relations who agrees to binding provides arbitration. The DRAA that parties who agree binding arbitration should do “by signed agreement so a specifically that provides an regarding award” delineated issues. MCL 600.5071. Further, specifically DRAA a prohibits court from ordering a domestic relations in party participate each party “unless to the domestic relations matter in acknowledges, or writing record, on the that
8 legislative analysis A of the DRAAas enrolled states: specifically [T]he RJA does not address arbitration in domestic matters, provides guidelines
relations and so no or standards for [3.216(A)(3)] Michigan such arbitration. court rule allows a court arbitration, upon stipulation parties, to order but also provide guidelines doesn’t standards or for such arbitration. .. . ... Because of crowded court dockets the fact that criminal (and precedence matters, parties cases must take over other families) dispute may their in a domestic relations find themselves waiting long they time before have a to resolve the dispute dispute a result often will resort to alternative resolution methods. problems. The bills would address all of these Standards and guidelines provide uniformity process safeguards would hearings. Legislative Analysis, [House that are essential to fair HB 4615, January 5, 2001, p 4552 and 5.] language” of the plain in has been informed he or she features of arbitration.9 salient 600.5072(l)(e) provides MCL Importantly, in a and duties are delineated powers arbitrator’s “[t]he sign all must agreement written arbitration 600.5072(1)provides: MCL party participate in arbitration order a The court shall not acknowledges, party relations matter each to the domestic unless record, informed in writing that he or she has been in or on the following: language plain all of the (a) voluntary. is Arbitration (b) appeal is limited. and the Arbitration (c) involving domes- is not recommended for cases Arbitration tic violence.
(d) may appropriate in all cases. Arbitration not be (e) powers and duties are delineated The arbitrator’s sign agreement all must before written arbitration commences. (f) arbitration, During power the arbitrator has the to decide agree- assigned under the arbitration each issue to arbitration will, however, enforce the arbitrator’s decisions ment. The court on those issues. attorney entering (g) party may an before into consult with may represented by process choose to be the arbitration *7 attorney throughout process. the entire (h) attorney, party may party If cannot afford an wish services, legal may may not be available. to seek free which or (i) solely party responsible, or A arbitration be either to will arbitration, jointly parties, pay for the cost of the with other to party including comparison, services. In fees for the arbitrator’s issue, except pay for for the court to hear and decide an does not filing prescribed payment court fees statute or of and other party responsible regardless of the use court rule for which the of arbitration. v Miller Opinion op the Court added.) (Emphasis
before arbitration commences.” provides qualifications ap- MCL 600.5073 for the and pointment of an arbitrator. importantly holding, language
Most to our in specifies litigant givesup that a domestic relations who right litigate her to her in matter court shall have a full hearing, unambiguously and fair arbitral the DRAA provides that appointed
[a]n chapter under this shall hear and make an award on each issue submitted for arbitration agreement subject under the provisions 600.5074(1) added).] agreement. of [MCL (emphasis respect With to defendant’s contention and the trial holding parte meetings court’s erroneous that ex parties satisfy statutory the ing,” this mandate for a “hear- unambiguous
we hold that the DRAAis clear and requiring hearing. party gives up in right AId. who her litigate including
to her court, case in substantial discovery appellate rights, exchange may deprived present not be of her her case this before a neutral arbitrator. To underscore requires mandate, clear the DRAA the arbitrator to scope meet with the issues, discuss the of the place hearing, including date, time and of the experts may testify, witnesses and for who and a schedule exchange expert reports summary expert testimony.10By provision, Legislature clearly 600.5076(1) provides: MCL practicable appointment arbitrator, As soon as after the attorneys shall meet with the arbitrator following: consider all of the
(a) Scope of the issues submitted.
(b) Date, time, place *8 APP497 264MICH
Opinion of the Court parties expressed and the that the arbitrator its intent prepare thoroughly a and fair full would meet meeting required hearing. MCL Indeed, “pre- equivalent of a the functional serves as 600.5076 parties plan present their can to so the trial conference” hearing. that the For us to hold the arbitral case at meeting, preparatory requires not the but DRAA hearing legislative injustice itself, do an to would reviewing parties. Further, in scheme and grounds an award under for vacation of arbitral requires importantly, a DRAA, note, statute we when court to vacate award postpone on a refused to [t]he cause, showing to hear evidence ma of sufficient refused controversy, hear or otherwise conducted the terial to the substantially party’s right.[11] ing prejudice to strong legislative to our direction In the face of this hearings judiciary for domestic relations to ensure fair simply arbitration, a trial court who choose any the arbitrator has overturn award which must statutory right party It to denied either contrary spirit of the DRAA to the letter and would be mandate that courts vacate arbitral awards when to
(c) Witnesses,
may testify.
including experts, who
(d)
summary
exchange
expert
reports
or
Schedule for
testimony.
expert
(e)
documents,
Subject
(2), exhibits,
or other
to subsection
party
applicable and material
information each
considers
exchange
production
of the information.
a schedule for
case and
party
reasonably
about
should have known
If a
knew or
party
required
produce,
of information the
existence
producing
party
party
objection
if the
information
waives
hearing. [Emphasis added.]
object
does not
before
added).
600.5081(2)(d)
(emphasis
MCL
v Miller
unfairly
arbitrators
denied
for ad-
parties’
requests
evidence,
journment, unfairly refused to hear
or un-
fairly conducted the
but to
affirm
hearing,
nonetheless
awards when
were denied their
*9
Indeed,
hearing
contrary
whatsoever.
to do so would be
of the
plain language
contrary
to the
statute and
to the
in
litigation.
interests of
domestic relations
keep
intent,
To
faith
the Legislature’s
courts
and arbitrators must
in full
proceed
compliance with
settlement,
the DRAA.12 Efforts at
mediation, or
“shuttle diplomacy” simply
satisfy
will not
the plain
language
DRAA,
of the statute.13 Under the
nothing
12Here,
require
statutory stipulation agreement
the court did not
Instead,
binding
simply
for
arbitration.
the court entered an order that
quoted from the statute and ruled that this was sufficient. The DRAA
requires
parties sign
agreement
protection
that the
as a
provision.
and a trial court must adhere to this
Because our
holding
hearing,
addresses the need for a
we need not address whether
stipulation requires
the lack of this
reversal or vacation of the “arbitral
award,”
However,
question
and we decline to address that
here.
we note
held,
context,
stipulated
this Court has
another
that a
order that
requirements
Harvey Harvey,
does not conform to the DRAA’s
is void.
278,
App
291;
(2003),
186;
257 Mich
“I don’t know what mean said. Alice Humpty Dumpty contemptuously. you smiled “Of course don’t you. argument —till I tell I meant ‘there’s a nice knock-down ” you!’ ” ‘glory’ argument,’ “But doesn’t mean ‘a nice knock-down objected. Alice word,” Humpty Dumpty said, “When I use a in rather a tone, just scornful “it I means what choose it to mean—neither more nor less.” App 264 Mich 497 508 satisfy To hearing will suffice.14 of a full and fair short DRAA, purpose and the of language15 express to a voluntary waiver knowing absent a com- must ensure full and arbitrators hearing, courts the DRAA.16 with the pliance protections Alice, is,” you question can make words “The said “whether many things.” mean so different is,” Humpty Dumpty, question to be “The said “which is [Carroll, Looking Through the Glass and master —that’s all.” (New There, Alice York: Alice Found in The Annotated What 1960), House, pp 268-269.] Bromhill 14 historically required and fair as a courts have a full Our Renny Hosp, precondition v Port Huron arbitration. See (1986) (arbitration 415,437; employment contract Mich 398 NW2d Houses, Inc, claims), Ryan’s Family Steak and Rembert v (1999) (arbitration 161; statutory employment 596 NW2d claims). discrimination appointed chapter under this shall hear and make an “An arbitrator on issue submitted for arbitration under the arbitration award each *10 600.5074(1) agreement.” agreement subject provisions of the MCL added). (emphasis party any to of her If a domestic relations is to be held have waived statutory rights protections afforded to her enumerated and clear, knowing voluntary. Legislature, This Court the waiver must be and contexts, relations, respect that has noted in other with to domestic may statutory rights, but waiver should be clear and waive 562, 568; unambiguous. Staple Staple, NW2d (2000). Here, knowing voluntary plaintiffs there no evidence of and is rights hearing. a full and fair The dissent cannot waiver of her to clearly voluntarily right seriously plaintiff contend that and waived her hearing. Indeed, plaintiff repeatedly and her asked for a to a counsel every step proceeding they hearing and have contended at commonly hearing in that this term is understood— desired a the sense challenge presented by right present and to the evidence evidence the other side. 2002, stated, hearing plaintiffs counsel “As to Mr. At a on June response, things continually [the arbitrator] Tucker in our one of the we hearings urged Mr. Tucker to do was to hold arbitration where we could adamant, people present put oath and evidence. He was would not under Miller v TO THE DISSENT IV RESPONSE interpreta- our The fundamental difference between the dissent is dissent’s of the DRAA and that of tion media- refusal, to de facto accept but our willingness, a fair of satisfying requirement the DRAA’s tion as in conducted what Here, the arbitrator essence media- understood as domestic relations commonly separate in by placing under MCR 3.216 tion this through to settle the case attempting rooms and course, mediation, the par- Of in diplomacy.” “shuttle our process Supreme are not bound thus ties 3.216. not a under MCR require Court does settlement, is, if the mediator proposes That reject proposed the mediator’s settlement parties may This underscores the difference agreement. graphically here, and mediation, binding which occurred between arbitration, may in be altered parties’ which lives nature substantially and forever because of from appeal award and the limited arbitral Furthermore, recognizing impor- arbitral awards. arbitrations, finality tant are determined with rights prerequisite has held that a basic to a this Court hearing.17 and fair binding arbitral award is full Legislature’s intent misapprehends The dissent and, plain language statute ignores further, very precise our misapprehends misstates my testify, not me to cross examine the allow client would allow defendant, hearing, not me to call witnesses.” At an ear her would allow very spent plaintiffs “Mr. little counsel told the trial court that Tucker coming day. my back He told client and I we would be time with us that go back to In the afternoon he said Mr. Miller had to to future sessions. day. day, so we wouldn’t be able to continue the next When Colorado that days attempt day, him in three in an I I was to contact two or left summary, comply hearings. either In he didn’t schedule continued *11 of the Court as arbitration or statute.” the order Rembert, Renny, supra; supra. See holding. not, not, need do Legisla- We thus as the not, ture did define particularity di- precise of a mensions full and fair The Legislature may, course, use terms of art such “hearing,” “witness,” “testify,” knowing decades or in- deed legal practice centuries of give meaning to these words, which will be Indeed, honored the judiciary.18 Legislature every need not define word used in a statute that professional addresses areas of practice or a learned profession. not, we, do nor We should seek here to define with precision finality what each term, such as “hearing,” Yet, means. neither are we making limited from a prudential judgment that what fails, occurred here woefully, satisfy even the most minimal concept Indeed, of a hearing. when faced with facts, these it is upon incumbent us to rule that some- thing that fails to even remotely a hearing resemble is clearly less than what the Legislature contemplated when it called for arbitral hearings as a predicate to binding arbitral It keeping awards. faith with the intent, legislative not “paternalistic,”19 to hold as we do guideline statutory interpretation, As a the United States Su preme Court has stated: Congress “[W]here borrows terms of art in which are accumu- legal meaning lated the practice, tradition and of centuries of it presumably adopts knows and the cluster of ideas that were body learning attached to each borrowed word in the from which meaning it convey judicial was taken and the its use will case, mind unless otherwise instructed. In such absence of con- trary may widely direction he accepted taken as satisfaction with definitions, departure not [Immigration as a from them.” & Cyr, 35;
Naturalization Service v St
533 US
312 n
121 S Ct
2271;
(2001), quoting
States,
that an arbitral award by litigant being bound relations her case having presented of right without basic case in a her opponent’s contested having and doors, followed bind- closed meetings behind Secret unacceptable. Were awards,” patently are ing “arbitral urge, that the dissent hold, defendant and to as we mandate legislative here satisfies transpired what repudiate hearing, we would full and fair for a Legislature that the of the DRAA provisions numerous to fair that are essentials “safeguards as promulgated the view of And, adopt we to were hearings.”20 reluctant to understandably be dissent, litigants would afforded of a process fate in the hands place their meaningful sense. As to heard in little or no be here falls short of statute, transpired what we read the plain and intended what Legislature what It a process is not requires. of the statute language we should or will endorse. analysis 8, legislative the DRAA as enrolled in n As we observed
states: specifically in domestic [T]he does not address arbitration RJA matters, provides guidelines for no or standards
relations and so [3.216(A)(3)] Michigan rule allows a court arbitration. court such arbitration, stipulation parties, upon but also to order guidelines provide for arbitration.... standards or such doesn’t dockets and the fact that criminal . .. Because of crowded court (and matters, precedence over other cases must take families) dispute may find themselves in a domestic relations their dispute they waiting long to resolve the time before have a dispute resort to alternative resolution as a result often will and methods. problems. and all of these Standards The bills would address safeguards uniformity process guidelines provide would Legislative Analysis, hearings. HB [House to fair
that are essential 5, 2001, p January 5.] 4552 and MICHAPP 497 Dissenting Opinion v CONCLUSION litigants purpose encouraging opt DRAA’s to forgo litigation to reduce provide and fair expeditious, inexpensive, dockets and protracted litigation in domestic alternatives relations undermined, matters be as would confi- severely would scheme, dence in the statutory permit were we here, arbitrator, arbitrarily ex parte substitute meetings statutory guarantee for the a full fair hearing.
Accordingly, we hold requires, DRAA among *13 other important protections afforded to a domestic rela- tions a full and fair a party, hearing before neutral Therefore, arbitrator. we reverse the trial court’s judg- ment incorporated award,” of divorce that the “arbitral award,” vacate the “arbitral remand the trial court opinion. with proceedings consistent our We do jurisdiction. not retain
SMOLENSK!, EJ., concurred. KELLY,J. (dissenting). I respectfully dissent from the majority’s decision to reverse the trial court’s order denying plaintiffs motion to vacate the arbitration award. I public policy believe that the majority unwisely attempts to create threatens disrupt process by causing arbitration instability this area of the law and threatening finality of arbitration awards. The decision not departs only plain from the language of the domestic relations arbitration act (DRAA), MCL 600.5070 et seq., but from existing also precedent. The protection Legislature and courts have afforded protection is the of the parties’ agreement to arbitrate without unwarranted intrusion by the The very courts. reason appellate review of 513 Miller v Dissenting by Opinion I would protection. afford this limited is to is arbitration affirm. OF REVIEW
I. STANDARD
enforce,
decision to
a trial court’s
review de novo
“We
Tokar
award.”
statutory arbitration
vacate, modify
(2003).
352;
139
350,
671 NW2d
App
Albery,
v
“strictly
award
of a
Our review
Krist,
v
246
rule.” Krist
statue and court
limited
(2001). Because the
59, 66;
631 NW2d
App
Mich
date of
after the effective
order
entered
was
governed
this case is
Pursuant parties may now appeal on the grounds arbitration awards nebulous the procedure leading to the arbitration award was not a “hearing.” But when these arbitration awards are ap- pealed, likely there will no record be for this Court to in Except review. limited not applicable circumstances here, the DRAAprohibits making a record arbitration hearings: provided section,
Except rule, court record shall agreement, not be made anof hearing chapter. under this If a record is not required, an may only by arbitrator make a record to be used reaching aid in decision. may provide agreement in the arbitration that a record be portions made of those 1 or related to more 600.5077(1) subject issues (emphasis [MCL arbitration. added).] scenario, In the best-case generally will agree about how the arbitration took In place. scenario, worst-case the parties disagree. will How then proceed will a court review arbitration proceed- ings to determine if they “hearing” constituted a in opinion, accord with majority’s “hearing” which is left undefined? Clearly Legislature if had contem- *15 Miller v by Opinion Dissenting Kelly, J. whether arbitration to determine review judicial plated it procedure, some formulaic hearings comported recording prohibited rather than required have would hearings. arbitration pro- undefined leaving “hearing”
In addition to hearings, of arbitration making a record hibiting of arbi- review strictly judicial limited has Legislature 600.5081(2) provides: awards. MCL tration section, the court shall party applies under this If a following of the circumstances: under vacate an award (a) fraud, by corruption, or procured The award was undue means. other
(b) ap- partiality an arbitrator was evident There arbitrator, neutral, corruption or mis- of an pointed as a party’s rights. prejudicing a conduct (c) powers. exceeded his or her The arbitrator (d) hearing on a postpone The arbitrator refused cause, ma- to hear evidence showing of sufficient refused hear- controversy, conducted the or otherwise terial to rights. substantially party’s ing prejudice or modifica- vacation Accordingly, permits the DRAA in a conducts a only tion if the arbitrator manner or if the or fraudulent corrupt, prejudicial, i.e., powers those powers, his or her arbitrator exceeds agreement to arbitrate. parties’ from the that derive power is the arbitrator’s specifies The DRAA agreement: parties’ conferred directly participate in party to not order a The court shall relations party to the domestic unless each record, that he writing on the acknowledges, in matter language plain of all informed or she has been following: Dissenting Opinion by
(e) powers are and duties delineated in arbitrator’s agreement all sign a written must before arbitration commences.
(f) arbitration, During power has the assigned decide each issue to the arbitration under the *16 however, agreement. will, arbitration The court enforce the 600.5072(1).] [MCL arbitrator’s decisions on those issues. recognized “[arbitrators Our also courts have authority parties’ derive their to act from the arbitra- agreement.” supra citing Krist, tion Sel-Way, at Gordon SpenceBros, Inc, 488,495;
Inc v 475 (1991). generally recognized NW2d 704 Arbitration is Rowry Michigan, aas matter of contract. v Univ of (1992). agree- 1, 10; Mich NW2d 305 Arbitration generally interpreted ments are ordinary in the same manner as they according contracts; must be enforced to parties. their terms to effectuate the intentions of the Roney App 226, Amtower v C Co, William & 232 Mich (1998). 233-234; 590 NW2d Nothing plain language preludes in the of the DRAA parties agreeing particular from a format for the procedure. majority opinion, arbitration which precludes divorcing couple agreeing from on an arbi- procedure, erroneously parties’ ability tration limits the directly plain to contract. This contravenes lan- guage parties degree DRAA, of the which affords governmental of self-determination, lessens intrusion private posturing, into lives, their avoids adversarial personal antagonisms. only and reduces Not does the encourage parties DRAA to enter a contract to agreement arbitrate, it also facilitates further between respect procedural with form of the hearing. This allows the to take responsibility creating resolving for of method their dispute uniquely method is suited to their —a relationship and resources. The DRAA sets forth the Miller Opinion Dissenting Kelly, J. process in the step of this requirements 600.5076(1), provides: which MCL appointment after the practicable
As soon attorneys meet shall arbitrator, parties and following: all of the to consider (a) Scope of the issues submitted.
(b)
hearing.
time,
Date,
place of the
testify.
(c)
may
Witnesses, including experts, who
summary
(d)
reports or
exchange
expert
for
Schedule
testimony.
expert
documents,
(e)
exhibits,
(2),
or
Subject to subsection
applicable and ma-
party considers
each
other information
exchange
production or
case and a schedule
terial to the
reasonably
party
should
If a
knew
the information.
party
of information
about the existence
have known
objection
produc-
party
required
produce, that
waives
object before the
party does not
ing
information if the
*17
5075.[1]
(f)
required under section
Disclosure
that
whole, it is clear
as a
Thus, reading the statute
the
through
Legislature imposed
the
safeguards
the
arbitra-
to conduct
not
the arbitrator
require
DRAA do
(because
are
no
set
specifics
manner
specific
tion
the
to conduct
forth),
require
do
but
The
agreement.
parties’
with the
hearing in accordance
on
procedure
for the
aversion
majority’s professed
not
a basis
agreed
provide
does
which
legis-
judicially
must not
award. “A court
vacating the
Legis-
that
provisions
adding into
statute
late
Prosecutor, 232
Co
Wayne
In re
not include.”
lature did
(1998). Further,
359
482, 486; 591 NW2d
Mich App
media-
process
refers to
majority
although
1
any circumstance
requires
disclose
the arbitrator
MCL 600.5075
impartiality.
may
or her
affect his
518
264 MICH APP 497
Dissenting Opinion by
process
binding;
tion, was still
mediation is
equivalent
subject
judi-
arbitration
to the same
App
cial
Frain v Frain,
limitations on review.
213 Mich
(1995).
511-513;
509,
741
NW2d
III. PRECEDENT AND POLICY
majority opinion
existing pre-
The
also contravenes
underlying public policy regarding
cedent
Historically, Michigan
arbitration.
courts have de-
requirements
pro-
clined to establish
for arbitration
ceedings. Michigan
policy
public
favors arbitration to
disputes.
Ryan’s Family
resolve
v
Rembert
Steak
App
Inc,
Houses,
118, 128;
The arbitrator issued a award fact, In his he scheduling findings further sessions. But plaintiff requested that had further sessions. noted nothing he raised new plaintiff concluded further The arbitrator summarized justify delay. would marriage the breakdown of the regarding the evidence were at fault. and concluded both *19 Dissenting by Opinion J. Kelly, receiving proposed plaintiff again After award, requested gave continued arbitration. The arbitrator plaintiff days three to an submit outline of the issues pursue. provided she wanted to Plaintiff the arbitrator lengthy response with a to the award. She asked for the opportunity present to further evidence of defendant’s inappropriate massage parlors use of and escort ser- regard, vices, and to cross-examine defendant in this to establish that defendant caused the breakdown of the marriage. complained nearly every Plaintiff also about aspect of the award itself.
The arbitrator final, rendered a award in which he stated that he had considered plaintiffs plaintiff concerns, but found that failed to any raise new facts or issues. He also noted that he any considered the evidence, cumulative as well as new by parties. facts raised both The final arbitration award substantially was similar to the award, first some response plaintiffs revisions in concerns. As far as plaintiffs complaints procedure, about the the arbitra- tor commented: following
The summary, findings and the contained therein, are based on the testimony credible parties; of the the credible information any exhibit; contained in arguments lawyers, of the lengthy and the summaries filed by both counsel. I have allowed both opportunity sides the present anything they further necessary felt was to a full and complete understanding respective of their positions. Each side has lengthy, submitted summaries, additional all of which have been detail, reviewed in against all the other evidence submitted. Plaintiff has insisted on addi- “hearings”. tional Plaintiff proffered claims that the Award comment, to counsel unfair, was ability and that an “confront” the Defendant and cross examine him would effect drastically [sic] credibility. his v Miller Dissenting by Opinion a list of plaintiff to submit The Arbitrator asked received, hearings. but No list was required such items that plaintiffs last sum- summary provided. The was another award) (which appeal proposed of the mary more was those submissions by Defendant. All of was answered carefully considered. been have also hearing argues that all of the after defendant simply a rehash old the Plaintiff are submissions new issues, are I find that no no issues raised. and that new topics that all of the I further find are raised. issues on Plaintiff, post-hearing, discussed were addressed the cumulative day I have considered sides. evidence, facts raised both as well as “new” *20 the format of the takes issue with Plaintiffs counsel have had a more hearing, suggesting that it should now structure, plaintiffs of confron- that the formal Arbi- dimension to this have added another tation would agreed appraisal of the case. The trator’s it not until hearing, and was nature after of informal testimony suggestion was made to proposed award Further, [Emphasis added.] had mode. in a confrontational formal, the written almost none of been more record, of because most come into the evidence would have hearsay. [Emphasis deleted.] Much the exhibits were by hearsay only supported commentary by lawyers was documents. existing departs precedent from majority further of fact. findings in the arbitrator’s it finds error
in that are a factual error made “Claims that arbitrator Forlini, review.” Konal scope appellate beyond (1999). In the 69, 75; 596 NW2d award, the arbi- the arbitrator’s portion emphasized informal agreed the parties trator found that did concluding plaintiff In nature of the it, the confused and was procedure not to this agree error to the arbitra- assigned improperly has majority finding. tor’s 264 MICHAPP497 Dissenting Opinion
Even if this Court properly could review the arbitra- findings fact, tor’s the majority ignores several im- portant First, factors. the arbitrator considered all of plaintiffs proffered evidence. Plaintiff cannot cite a single piece of evidence that was not considered. With regard cross-examination, the arbitrator did not “unfairly” deny plaintiffs request to cross-examine defendant, he though deny did her request. The denial because, was not unfair before plaintiffs request, parties had agreed to meet the arbitrator separately and voluntarily Moreover, did so. plaintiff wanted to cross- examine defendant infidelities, about his which, accord- ing to the award, arbitration defendant generally ad- mitted. Finally, plaintiff did not complain that failed to comply with procedural require- ments of the DRAA until the arbitration award after was issued. It paternalistic to conclude plaintiff, a competent adult who entered into agreement presence of her attorney and voluntarily partici- pated in the arbitration hearing while represented by her attorney, “found it difficult to define... what transpired.” Ante at 501 n 4. The only thing plaintiff found difficult was accepting the award, despite having agreed to binding arbitration and the procedure.
V CONCLUSION *21 I would affirm the arbitration award because there is proper no basis for vacating it: although the arbitration procedure was “informal” “unorthodox,” DAIIE, at supra there is no indication that the procedures exceeded the authority arbitrator’s or lacked impartial- ity. The parties were basic, “afforded protective rights, important most of which ais full and hearing.” fair Ante at 500.