Fiscal Summary

NOT SIGNIFICANT

Bill Summary

This bill governs arbitration of a domestic relations dispute, and provides that an arbitrator does not have authority to issue an award that:

(1) Grants a legal separation, divorce, dissolution of marriage, or annulment;

(2) Terminates parental rights;

(3) Grants an adoption or a guardianship of a child or incapacitated individual;

(4) Determines the status of dependency or adjudicates a child in need of protection; or

(5) Determines issues of civil or criminal contempt.

CHIOCE OF LAW RULES

This bill provides that, in determining the merits of a domestic relations dispute, the matter is governed by the substantive laws of this state, including its choice of law rules, and its procedural laws where applicable.

ARBITRATION AGREEMENTS

This bill requires an arbitration agreement to be signed by the parties to the arbitration proceeding; identify the arbitrator, an arbitration organization, or a method of selecting an arbitrator; and describe in a general nature the domestic relations dispute the parties intend to arbitrate.

This bill provides that an agreement to arbitrate a domestic relations dispute that arises between the parties before or after the agreement is made is valid and enforceable as any other contract and irrevocable, except on a ground that exists at law or in equity for the revocation of a contract. Moreover, an agreement to arbitrate a child-related dispute that arises between the parties after the agreement is made is unenforceable unless the resolution of the dispute is made in accordance with this bill. If a party objects to arbitration on the ground the arbitration agreement is unenforceable or the agreement does not include a domestic relations dispute, then this bill requires the court to decide whether the agreement is enforceable or includes the domestic relations dispute.

NOTICE OF ARBITRATION PROCEEDING

Pursuant to this bill, a person initiates an arbitration proceeding by giving written notice to the other parties to the agreement as provided in the agreement, or, in the absence of such a provision, by certified or registered mail, return receipt requested, or an alternative commercial service that confirms delivery. This bill requires the notice to describe the nature of the controversy and the remedy sought. This bill further provides that unless a person promptly objects in the arbitration proceeding to the lack or insufficiency of notice, the person by participating in the proceeding waives any objection to lack of or insufficiency of notice.

JUDICIAL RELIEF AND COURT'S AUTHORITY TO COMPEL, TERMINATE, OR CONSOLIDATE ARBITRATION

This bill requires, when a domestic relations civil action is pending, an application to the court for judicial relief under this bill to be made to that court. If no domestic relations civil action is pending, then this bill requires application for judicial relief under this bill to be made to a court with jurisdiction over the parties, subject matter jurisdiction, and venue. Upon application by a party to a court, this bill authorizes a court to compel arbitration if the parties have entered into an arbitration agreement that complies with this bill unless a court determines that the arbitration should not proceed because a party's safety or ability to participate effectively in arbitration is at risk.

Upon application by a party to a court, this bill requires a court to terminate arbitration if it determines that the parties have not entered into an arbitration agreement that complies with this part; or the arbitration should not proceed because a party's safety or ability to participate effectively in arbitration is at risk.

Unless prohibited by an arbitration agreement, on application of a party, this bill authorizes a court to order consolidation of separate arbitrations involving the same parties and a common issue of law or fact if necessary for the fair and expeditious resolution of the domestic relations dispute.

Unless a domestic relations civil action between the parties is pending, an application to compel or terminate arbitration under this bill must be served in the manner provided by law for the service of a summons in a civil action.

ARBITRATOR QUALIFICATIONS AND SELECTION OF ARBITRATOR OR ARBITRATION ORGANIZATION

Unless waived in a writing signed by the parties, this bill requires an arbitrator to:

(1) Be an attorney in good standing admitted to practice in this state;

(2) Be trained in arbitration with the American Academy of Matrimonial Lawyers (AAML), American Bar Association (ABA), American Arbitration Association (AAA), or a substantially equivalent arbitration organization or training approved by the administrative office of the court; and

(3) Have practiced law or served as a judge in this state for a minimum of 10 years and during the lawyer's time or judicial tenure, a substantial portion of the lawyer's practice must have been family law cases.

This bill provides that an arbitrator or arbitration organization is selected through a process stated in the arbitration agreement; and if an arbitrator is unable or unwilling to act, is not identified in an agreement, or if the agreed method of selecting an arbitrator fails, then upon application of a party, this bill requires the court to nominate three individuals and each party taking alternate turns will strike one name from the court's list. The court then must appoint the remaining arbitrator unless a valid and timely objection is made within 10 days of the court's appointment. In the event the designated arbitrator cannot serve, the process must be repeated to the extent necessary.

IMPARTIALITY OF THE ARBITRATOR

Before serving, this bill requires the selected arbitrator, after making reasonable inquiry, to disclose to all parties any known fact a reasonable person would believe is likely to affect:

(1) The impartiality of the arbitrator in the arbitration, including bias, a financial or personal interest in the outcome of the arbitration, or an existing or past relationship with a party, attorney representing a party, or witness; or

(2) The arbitrator's ability to make a timely award.

Pursuant to this bill, an arbitrator, the parties, and the attorneys representing the parties have a continuing obligation to disclose to all parties any known fact a reasonable person would believe is likely to affect the impartiality of the arbitrator or the arbitrator's ability to make a timely award.

This bill further provides that an objection to the selection or continued service of an arbitrator must be made not later than 30 days after discovery of undisclosed facts or other cause for disqualification is known or by the exercise of reasonable care should have been known to the objecting party to an arbitration organization that appointed the arbitrator according to their procedure; or, where the arbitrator was otherwise selected, upon application to a court for a stay of arbitration and disqualification of the arbitrator.

If the arbitrator recuses, the parties agree to discharge an arbitrator, or the arbitrator is disqualified, then this bill authorizes the parties by agreement to select a new arbitrator or request the appointing authority or a court, as appropriate, to select another arbitrator as provided in this bill.

EX PARTE COMMUNICATION WITH ARBITRATOR PROHIBITED

This bill authorizes a party to be represented in an arbitration by an attorney or be self-represented; and be accompanied by an individual who will not be called as a witness nor act as an advocate.

This bill prohibits a party or representative of a party from communicating ex parte with the arbitrator except to the extent that the person would be allowed to communicate with a judge pursuant to the Code of Judicial Conduct of the Rules of the Tennessee Supreme Court.

INJUNCTIONS AND TEMPORARY AWARDS

Before an arbitrator is selected, upon application of a party, this bill authorizes a court to enter a temporary order under laws governing domestic relations and the Tennessee Rules of Civil Procedure to preserve the status quo. After an arbitrator is selected:

(1) The arbitrator may make a temporary award under laws governing domestic relations and the Tennessee Rules of Civil Procedure; and

(2) If the matter is urgent and the arbitrator is not able to act in a timely manner or provide an adequate remedy, then upon application of a party, a court may enter a temporary order under laws governing domestic relations and the Tennessee Rules of Civil Procedure.

Upon application of a party and before a court confirms a final award, the court under this bill may confirm, vacate, alter, or amend the temporary award made under (1) above. When an arbitrator makes an award in favor of a party to the arbitration proceeding, this bill authorizes the prevailing party to make application with the court for an expedited order to confirm the award. Following such application, the court must summarily decide the motion, and must issue an order to confirm the award unless the court vacates, alters, or amends the award under this bill.

CASES INVOLVING ABUSE, NEGLECT, OR RISK OF HARM

Pursuant to this bill, if a party is subject to an order of protection or an arbitrator determines there is a reasonable basis to believe a party's safety or ability to participate effectively in arbitration is at risk, then the arbitrator must stay the arbitration. Before the arbitration may proceed, after application by the party at risk, the party at risk must affirm the arbitration agreement in a writing and a court must determine that:

(1) The affirmation is informed and voluntary;

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

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

If an arbitrator determines that there is a reasonable basis to believe the case involves domestic abuse or child abuse or neglect, then this bill authorizes the arbitrator to make a temporary order to protect a party or child from abuse or neglect and must stay the arbitration. This bill authorizes an arbitrator to make a temporary order to protect a party or child from harm, harassment, or intimidation. Upon application of a party to a court, this bill authorizes a court to stay arbitration and review a determination or temporary award under this bill and either confirm, vacate, alter, or amend the award. This bill supplements remedies available under laws of this state other than this bill for the protection of victims of domestic violence, family violence, stalking, harassment, or similar abuse.

ARBITRATION RULES OF PROCEDURE AND ARBITRATOR'S AUTHORITY

This bill requires an arbitrator to conduct an arbitration in compliance with the rules or procedures of the appointing authority not inconsistent with this bill, or in the absence of the rules or procedures, in a manner the arbitrator considers appropriate for a fair and expeditious disposition of the dispute; and also requires an arbitrator to provide each party a right to be heard, to present relevant and material evidence to the dispute, and to cross-examine witnesses. Unless the parties otherwise agree in a signed writing, an arbitrator's powers include those powers described in this bill.

This bill provides that all laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition, or a discovery proceeding as a witness apply to an arbitration proceeding as if the controversy were the subject of a civil action in this state.

This bill authorizes the court to enforce a subpoena or discovery-related order for the attendance of a witness within this state and for the production of records and other evidence issued by an arbitrator in connection with an arbitration proceeding in another state upon conditions determined by the court so as to make the arbitration proceeding fair, expeditious, and cost effective. This bill requires a subpoena or discovery­related order issued by an arbitrator in another state to be served in the manner provided by law for service of subpoenas in a civil action in this state and, upon application to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by law for enforcement of subpoenas in a civil action in this state.

ARBITRATION HEARING IS GENERALLY NOT REQUIRED TO BE RECORDED

Except as required by this provision or other law of this state, this bill does not require an arbitration hearing to be recorded unless required by the arbitrator, provided by the arbitration agreement, or requested by a party. However, any part of an arbitration hearing concerning a child-related dispute must be recorded.

ISSUANCE OF AWARDS

This bill requires an arbitrator to issue a written, dated, and signed award not later than 30 days after the arbitration hearing has concluded, unless the agreement or the rules of the appointing authority otherwise provide. This bill further requires the arbitrator to give notice by delivering the award to each party by a method agreed on by the parties or, if the parties have not agreed on a method, by any method reasonably calculated to give the parties prompt notice. The award under this bill must state the reasons on which it is based unless otherwise agreed by the parties, and an award determining a child-related dispute must state the reasons in particular on which it is based on applying the laws of this state. Such an award is enforceable only after the court reviews the award with the same standard for approval of agreed permanent parenting plans. An award under this bill is not enforceable as a judgment until confirmed under this bill. Temporary awards of the arbitrator are subject to immediate confirmation regardless of the ongoing arbitration proceeding.

MODIFICATION OF AWARDS

On motion of a party made not later than 30 days after the arbitrator gives notice of an award, this bill authorizes the arbitrator to alter or amend the award:

(1) If the award has an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property;

(2) If the award is imperfect in a matter of form not affecting the merits on the issues submitted; or

(3) To clarify the award.

COURT CONFIRMATION OF AWARD

After an arbitrator gives notice of an award, including an altered or amended award, and upon application to the court to confirm the award, this bill requires the court to issue a confirming order unless the parties otherwise in a record state that part or all of an award is prohibited from being confirmed by the court or an application to vacate, alter, or amend the award is timely filed.

Upon application by a party, filed within 60 days of the arbitrator's notice, this bill requires a court to confirm a binding arbitration award where all parties to the arbitration agree in writing to the confirmation of the award; or the time has expired for making a motion, and no motion is pending under this bill.

Upon application by a party, filed within 60 days of the arbitrator's notice, this bill requires the court to vacate an unconfirmed award if the moving party establishes the following:

(1) The award was procured by fraud or other undue means;

(2) There is by clear and convincing evidence of partiality by an arbitrator appointed as a neutral or of the arbitrator's misconduct substantially prejudicing the rights of any party;

(3) The arbitrator exceeded their authority;

(4) The arbitrator refused to postpone a hearing on showing of sufficient cause for postponement, or refused to hear evidence material to the controversy, or otherwise so conducted the hearing in a manner to prejudice substantially the rights of a party; or

(5) There was no arbitration agreement unless the party participated in the arbitration hearing without raising the objection.

If an award determines a child-related dispute, then this bill requires a court to confirm the non-binding award in accordance with this bill, if the court finds that the award also states the reasons with particularity; complies with the laws of this state; and is in the best interests of the child.

Before a court confirms an award, the court also may alter or amend the award:

(1) If the award has an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property;

(2) If the award is imperfect in a matter of form not affecting the merits on the issues submitted; or

(3) To clarify the award.

This bill requires a court's review of a child-related dispute to be a review based on the arbitral record, with no additional proof introduced, unless otherwise directed by the court. On confirmation, an award under this bill is enforceable as a judgment.

ENFORCEMENT OF AWARD / FULL FAITH AND CREDIT

This bill further requires a court to enforce an award confirmed under this bill, including a temporary award, in the manner and to the same extent as any other judgment; and to grant full faith and credit to the judgment of a court of another state confirming an arbitration award in a domestic relations dispute, that is not inconsistent with this bill or the laws of this state. Upon application of a party, this bill authorizes the court to order that a document or part of the arbitration record be sealed or redacted to prevent public disclosure of all or part of the record or award to the extent permitted under the law of this state other than this bill.

APPEALS

This bill authorizes an appeal to be taken from an order denying an application to compel arbitration; an order granting an application to stay arbitration; or an order confirming or denying confirmation of an award.

ARBITRATOR IMMUNITY

This bill provides that an arbitrator or arbitration organization acting in that capacity in a domestic relations dispute is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity. The immunity provided by this provision supplements any immunity under law of this state other than this bill. An arbitrator's failure to make a disclosure required by this bill does not cause the arbitrator to lose immunity under this provision.

Pursuant to this bill, an arbitrator is not competent to testify, and is prohibited from being required to produce records, in a judicial, administrative, arbitration, or similar proceeding about a statement, conduct, decision, or ruling occurring during an arbitration, to the same extent as a judge of a court of this state acting in a judicial capacity is afforded the same protection and immunities. This provision does not apply to the extent disclosure is necessary to determine a claim by the arbitrator or arbitration organization against a party to the arbitration; or to a hearing on a motion to confirm an award.

If a person commences a civil action against an arbitrator arising from the services of the arbitrator or seeks to compel the arbitrator to testify or produce records in violation of the above provision and the court determines that the arbitrator is immune from civil liability, cannot be compelled to testify, or cannot be required to produce the records, then this bill requires the court to award the arbitrator reasonable attorney's fees, costs, and expenses of litigation.

BILL'S INTERACTION WITH FEDERAL LAW PROVISIONS

This bill modifies, limits, or supersedes some provisions of federal law regarding electronic records and signatures in commerce, but does not modify, limit, or supersede the provisions regarding consumer disclosures. This bill does not authorize electronic delivery of any of the notices described in the provisions of federal law cited in the full text of this bill.

ENFORCEMENT OF ARBITRATION AGREEMENT

Except as provided in provisions for creditor's rights, present law provides that an antenuptial or prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of the agreement must be binding upon any court having jurisdiction over the spouses and/or the agreement if the agreement is determined, in the discretion of the court, to have been entered into by the spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse. Present law requires the terms of the agreement to be enforceable by all remedies available for enforcement of contract terms.

This bill adds to the above provision that an arbitration agreement made pursuant to this bill is binding upon any court having jurisdiction over the parties to the agreement or the agreement; and reiterates that the terms of the agreement must be enforceable by all remedies available for enforcement of contract terms.

Pursuant to this bill, when the parties to a divorce or legal separation submit to arbitration under this bill, the court is not required to make an affirmative finding concerning the equitable distribution of marital property.

APPLICABILITY

This bill applies to arbitration of a domestic relations dispute under an arbitration agreement made on or after July 1, 2023. If an arbitration agreement was made before July 1, 2023, then the parties may agree that this bill applies to the arbitration.