As published in the January/February 2022 issue of Tennessee Bar Journal.
Arbitration is used as a method of dispute resolution in a variety of civil matters in Tennessee. However, under the current state of Tennessee law, binding arbitration cannot be used to resolve any portion of a family law dispute.
There have been recent proposals, and ongoing negotiations, to permit family law cases to be submitted for binding arbitration, but, as of the publishing of this column, nothing has been altered. Nonetheless, arbitration in family law cases is becoming increasingly more common throughout the country and is a realistic possibility in the near future in Tennessee. All family law practitioners should be aware of how this would operate and what the possible benefits to their clients might be.
The advantages of arbitration in any case, including family law cases, over litigation before the courts are multiple and significant. The parties are able to select their arbitrator and can pick one with greater experience and knowledge in the exact area of law being disputed. The results of the award by the arbitrator are not made public unless there is a challenge to the award. The parties can more easily narrow the issues that they are presenting to the arbitrator and can set reasonable limits to the discovery process that reduce costs and time. The parties can proceed at an accelerated timetable to expedite the litigation, thereby reducing overall costs and providing finality more quickly as most arbitrator’s calendars would be far lighter than that of an active court handling family law matters as well as being more flexible with dates and hours.
Unlike mediation, which is currently required under family law statute, an arbitrator’s award is binding on the parties and the rules about witnesses and evidence are more formal and wide ranging.
Also, in child custody disputes, the more informal arbitration the litigation may serve as a means of reducing tense, bitter, and harmful side effects that often accompany contested custody situations. There are a few detractors to the process for parties, primarily that they have little or no recourse to contest the findings or award of the arbitrator in the court system once that method has been chosen.
The Tennessee Bar Association Family Law Section Executive Committee has recently pursued amending the Tennessee Supreme Court Rules in an effort to change the practice in the state related to arbitration. To examine each effort in turn, Supreme Court Rule 31A generally governs arbitration in Tennessee. The Tennessee Bar Association proposed to add Supreme Court Rule 31B specifically to permit arbitration in some family law disputes, generally in the division of the estate and alimony, but the arbitrator may also determine child custody issues though the determination of child dispute issues “is enforceable only after a determination and findings by the court that the provisions of the award are in the best interest of the child.” This method of adding an additional level of scrutiny is in recognition of the potential chilling effect of using arbitration in a child custody dispute with no recourse to the court system after the issuance of the award.
Both parties would have to agree to resolve their dispute through arbitration and which issues they wanted to resolve through arbitration. Further, arbitrators would be restricted from granting “legal separation, divorce, dissolution of marriage or annulment,” and the arbitrator could not “terminate parental rights” nor could they grant “an adoption or a guardianship of a child or incapacitated individual.” The arbitrator would be further restricted from determining “the status of dependency or a child in need of protection” and could not determine “issues of civil or criminal contempt” under this proposal.
On Nov. 1, 2021, after reviewing the proposal by the Tennessee Bar Association, the Tennessee Supreme Court denied the request to amend its rules to include arbitration in family law cases.
Given the Supreme Court’s denial of the TBA Petition to Adopt Rule 31B, the TBA Family Law Section Executive Council is beginning the process of converting the petition into legislation with the hope that it will be considered by the General Assembly in 2023. If the family law arbitration legislation is eventually enacted, it seems that the benefits would far outweigh the potential negatives.
The overarching trend in civil litigation attempting to reduce legal costs by reducing use of the court system and instead rely on viable and proven methods of alternate dispute resolution should be applied to the family law arena as well.
As the Tennessee Bar Association has noted in detail, family law parties could not only reduce time and cost, but could also potentially reduce the acrimony that often comes with family law cases, particularly when it comes to contested litigation. If and when this comes to fruition, practitioners should be aware of the change and ready and willing to use it to benefit their clients once this option is formally on the table.
MARLENE ESKIND MOSES is a partner at Gullett Sanford Robinson & Martin, and formerly was manager and founder of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.
MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.