§56.03 Arbitration
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§ 56.03 ARBITRATION
In arbitration, the parties to the dispute agree to a privately selected decision maker (the arbitrator) to resolve the issues. A final dissolution order may provide for arbitration of future conflicts over parenting or child support issues. The parties may also agree to submit an existing dispute to arbitration. The arbitration may proceed according to standard arbitration rules or the parties may elect to modify the standard rules. A successful arbitration will follow a process that meets the parties' needs in terms of time, cost, decision makers, discovery, evidence, and rules.
The arbitrator acts as a judge and determines all issues of contested fact and law. An arbitrator may be an attorney, retired judge, or some other person with the requisite skill and ability to resolve disputes. Arbitration should be thoroughly distinguished from mediation, insofar as the arbitrator remains a neutral and detached party who hears and determines facts and law. An excellent summary of the difference between arbitration and mediation is found in Yaw v. Walla Walla School Dist. No. 140, 106 Wn.2d 408, 411, 722 P.2d 803 (1986):
Arbitration "is a substitute forum designed to reach settlement of controversies, by extrajudicial means, before they reach the stage of an action in court." Thorgaard Plumbing & Heating Co. v. County of King, 71 Wn.2d 126, 131, 426 P.2d 828 (1967). Mediation involves the resort of the contesting parties to a third party who attempts to "persuade them to adjust or settle their dispute." BLACK'S LAW DICTIONARY 1133 (4th rev. ed. 1968). A mediator's opinion is advisory; an arbitrator's award is binding.
For a thorough examination of mediation, see Chapter 55 of this deskbook. Arbitration takes a variety of forms, and each one of them should be clearly distinguished from the others.
[1] Types of Arbitration
[a] Statutory Arbitration (Ch. 7.04A RCW)
Arbitration is a statutorily recognized special proceeding governed by the Washington Uniform Arbitration Act, codified in Chapter 7.04A RCW. Price v. Farmers Ins. Co. of Wash., 133 Wn.2d 490, 946 P.2d 388 (1997). Private arbitration is governed and conducted entirely under Chapter 7.04A RCW. Sales Creators, Inc. v. Little Loan Shoppe, 150 Wn. App. 527, 208 P.3d 1133 (2009). This statute took effect on January 1, 2006, and replaced the former Chapter 7.04 RCW (repealed 2005). The Act applies retroactively to all arbitration agreements. RCW 7.04A.030(2). Washington's Act is based on the uniform Arbitration Act, adopted in 2000 by the National Conference of Commissioners on Uniform State Laws.
Note: As this deskbook went to press, members of the Washington State Legislature were considering an updated version of the Uniform Family Law Arbitration Act that may be submitted to the state legislature for consideration in the 2021-22 legislative session. The Executive Committee of the Washington State Bar Association's Family Law Section has made recommendations to improve the proposed bill.
Under the provisions of Chapter 7.04A RCW, absent an agreement to arbitrate, arbitration can be commenced by providing "notice to another person by taking action that is reasonably necessary to inform the other person in ordinary course, whether or not the other person acquires knowledge of the notice." RCW 7.04A.020. However, absent an agreement to arbitrate, notice is more clearly defined as being sent either by certified or registered mail, return receipt requested, or by service in the same manner as to initiate a civil action. RCW 7.04A.090.
Practice Tip: With respect to "custody" and the parenting plan, the court always retains responsibility for the best interests of the child. The court could therefore decide to rehear an arbitrated parenting issue, essentially do novo. However, the parenting plan may grant the arbitrator the power to make additions and alterations to the parenting plan. For example, the court has discretion within the marriage dissolution statute to delegate to an arbitrator the court's authority to suspend parental visitation rights. Kirschenbaum v. Kirschenbaum, 84 Wn. App. 798, 929 P.2d 1204 (1997); Rimov v. Schultz, 162 Wn. App. 274, 253 P.3d 462 (2011); In re Parentage of Smith-Bartlett, 95 Wn. App. 633, 976 P.2d 173 (1999).
The current statute indicates that, absent an agreement, only one arbitrator will be appointed. RCW 7.04A.110. Additionally, the time limits for an arbitrator recording an award and the court confirming the award are at the discretion of the court. RCW 7.04A.190, 220. The court may modify an award if (1) there was an evident mistake; (2) the arbitrator awarded on a matter not submitted to them; or (3) the award was imperfect in form, not affecting the merits of the controversy. RCW 7.04A.240. However, when reviewing the threshold question of arbitrability, the reviewing court is not to examine the merits of the dispute. In re Marriage of Pascale, 173 Wn. App. 836, 295 P.3d 805 (2013). Specifically, the court is required to limit its inquiry to whether the dispute falls within the scope of the agreement to arbitrate.
Arbitrations are highly favored as a means of resolving monetary disputes, and the results are usually final. Godfrey v. Hartford Cas. Ins. Co., 142 Wn.2d 885, 16 P.3d 617 (2001). Binding arbitration awards typically will not be vacated or modified absent an error of law on the face of the decision. Id.; Davidson v. Hensen, 135 Wn.2d 112, 954 P.2d 1327 (1998); N. State Constr. Co. v. Banchero, 63 Wn.2d 245, 386 P.2d 625 (1963); Beroth v. Apollo Coll., Inc., 135 Wn. App. 551, 145 P.3d 386 (2006); Dahl v. Parquet & Colonial Hardwood Floor Co., 108 Wn. App. 403, 30 P.3d 537 (2001), review denied, 146 Wn.2d 1004 (2002). This may be because the statute does not require an arbitrator to file or preserve the evidence taken. Therefore, a court can review an alleged error only if it appears on the face of the award. Boyd v. Davis, 127 Wn.2d 256, 897 P.2d 1239 (1995).
RCW 7.04A.040(3) forbids changing, waiving, or varying requirements of this section, such as arbitrator immunity. RCW 7.04A.140; court enforcement of any preaward ruling, RCW 7.04A.180; changing the award by the arbitrator, RCW 7.04A.200(3) & (4), or by the court, RCW 7.04A.240; confirming an arbitration award, RCW 7.04A.220; vacating an award, RCW 7.04A.230; or granting attorney fees and costs for court action, RCW 7.04A.250. The arbitration process under Chapter 7.04A RCW places authority in the arbitrator to determine the arbitration process, including allowing discovery, issuing subpoenas, and setting schedules. RCW 7.04A.250(3).
If possible, consider naming more than one arbitrator in stipulations or orders for future arbitration, in the event an arbitrator becomes unavailable, to preserve the benefit to litigants...
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