Why Mediation & Arbitration should be an option for TN families and how you can help
Lisa Gill of Gill Family Law has pushed herself, her team, and her law firm to go above and beyond for clients. On a grander scale, state legislation can have a tremendous impact on all clients in the midst of family law legal pursuits. It has long been a target of Lisa to make a major change that could help not only her clients, but all residents in the state of Tennessee experiencing disputes in family law. As such, a motion has been made to introduce legislation that will do exactly that.
Leaders in family law associated with the Tennessee Bar Association, including Lisa Gill, agree with this motion. So what is it?
It is legislation that gives parties the freedom to choose voluntary arbitration as a form of alternative dispute resolution in family law disputes. Many states have already adopted such legislation and seen the benefits.
Below you will find the article Lisa has written, posted by the TBA, to explain the ins and outs of this legislation. If you want to help make this available for TN residents, it's important to contact your legislators and let them know!
Read the TBA article here.
Read the bill here.
Write your legislator here. Need help with a letter that sums it up? See below. This is how you can help.
Sen./Rep. ________:
I am a citizen who lives in your district. I write to urge you to support SB710/HB1177, which would give parties in family-law disputes the option to voluntarily resolve those disputes in arbitration instead of in a courtroom.
No one would be forced to arbitrate. It merely provides Tennesseans with a choice already enjoyed by citizens in Arizona, Colorado, Connecticut, Hawaii, Illinois, Indiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, Texas, Vermont, Washington, and Wisconsin.
This law is supported by the Family Law Section of the Tennessee Bar Association.
Answers to frequently asked questions about the legislation can be found here: https://herstontennesseefamilylaw.com/wp-content/uploads/2023/03/Frequently-Asked-Questions.12012022.pdf.
I trust you will vote to give Tennesseans the freedom to choose this option if they believe it best for their circumstances.
Sincerely,
[Your Name]
TBA ARTICLE:
In Tennessee, families have less access to resolve disputes outside of court than the law provides to employers, contractors or corporations. Arbitration, a form of alternative dispute resolution (ADR), often saves time and money, is private, confidential and can minimize acrimony. Yet, there is no statutory road map for family law litigants who want to use it. If arbitration were available, family law litigants could submit their issues to a third-party neutral (arbitrator) for a private hearing who would then issue an award with certain aspects subject to court review and approval. Although domestic relations arbitration is available to family law litigants in other states, Tennessee family law litigants do not have access to a procedural road map for family law arbitration.1
Through arbitration, Tennessee litigants in employment lawsuits, labor lawsuits, complex corporate litigation and construction litigation have access to a more expeditious and more discreet resolution procedure than family law litigants. This seems illogical given the very nature of family law litigation and how especially stressful litigation is for families and children. Highly confidential, personal and financial information is produced and filed in a divorce or custody action; such information is extremely invasive and may even be detrimental to the litigants, both personally and professionally.
This article addresses the current ADR processes available for Tennessee family law litigants, the deficiencies, the proposed Tennessee Domestic Relations Arbitration Act and the benefits of TDRAA to families and courts. The TDRAA is proposed legislation designed to create a road map for the use of domestic relations arbitration in Tennessee.
Current ADR Process For Family Law Litigants
Without the TDRAA providing a road map, Tennessee family law practitioners must decipher how and when to apply the Tennessee Arbitration Act to family law cases. The Tennessee Arbitration Act has been available for decades but it lacks specificity regarding the application to family law disputes. As a result, arbitration is rarely used in family law cases. Without access to a procedure for family law arbitration, Tennessee families only have access to non-binding ADR options that require them to reach consensus. Currently, family law litigants in Tennessee have the following six non-binding ADR options: (1) mediation; (2) judicial settlement; (3) case evaluation (4) mini trials, (5) non-binding arbitration, and most recently adopted by the Supreme Court (6) collaborative law. 2
Tennessee statutory language often reflects that family law litigants should engage in “dispute resolution” but mediation is the only form of ADR required.3 Where consensus is not possible or appropriate, the mediation requirement can be problematic. Tennessee family law litigants deserve access to an ADR procedure using a third-party decisionmaker that takes place outside the traditional courtroom setting.
Mediators and other family law neutrals are governed by Tennessee Supreme Court Rule 31A. Under Rule 31A, these family law neutrals cannot make final awards. They only provide advisory opinions on what may happen if the parties go to trial. All the other alternative dispute resolution options, including collaborative law, require parties to reach consensus to achieve resolution. Reaching global consensus on the issues may not be possible or appropriate for parties involved in high asset or high conflict disputes. The remaining section of this article focuses on: (a) why the current ADR options sometimes fail Tennessee families, (b) why our legislature should adopt the TDRAA for family law litigants who want the option to use a third-party decisionmaker to achieve closure and (c) how domestic relations arbitration could benefit both litigants and the court.
Drawbacks with Current ADR Processes Which Often Lead to an Increased Burden on Tennessee Family Law Litigants
Although mediation is the most used form of ADR in Tennessee family law cases, it has its drawbacks. The lack of procedural prerequisites can make mediation time consuming and costly. Tennessee has no rules requiring parties to exchange information prior to attending mediation in family law cases. Tennessee law does not require family law litigants to provide sworn statements of income and expenses, marital balance sheets or proposals prior to participating in mediation. If parties fail to exchange critical information beforehand, time and money is wasted in mediation trying to obtain that information or determining the contested issues. To add to the delays, the court may order the parties to engage in multiple mediations to: (1) develop their Temporary Parenting Plan, (2) address other immediate but piecemeal relief, (3) develop their Permanent Parenting Plan and (4) reach global resolution.4 If any mediations fail, the judge may order the parties to attend mediation again.
Even where there is great disparity between the parties’ incomes, the court may order the parties to divide the cost of mediation as if they were arm’s length transaction litigants. Whether one party has greater income or not, repeated requests to return to mediation add expense and delay. Though mediation is used in high conflict cases, requiring parties to reach consensus may be inappropriate where there is a pre-existing or current power differential between them.5 One party’s repeated request for mediation after it has already failed can be used as a tactic to reduce the other party’s wherewithal, emotional stamina and access to justice. If they are unable to reach consensus, parties lose time and money and gain no resolution.
Multiple mediations increase the overall expenses and attorney’s fees to litigate family law issues. Each time they attend mediation, family law litigants must pay their own attorney’s fees and the mediator’s fees. In complex, high-conflict cases involving custody, the parties may also be required to pay fees for other attorneys who are court-appointed to assist the court. Guardians ad litem and attorneys ad litem are examples of other attorneys that are court-appointed in family law cases. Though they perform a function for the court, litigants are required to pay these attorneys’ hourly rates throughout the case. As an example, one high conflict Tennessee case took four years to reach ultimate resolution, involved multiple trial judges, involved multiple attorneys and the parties’ expense for various attorneys’ fees was over $800,000.6 The trial court went on to opine that “[s]uch cost is a mark of the failure of the legal system to effectively deal with and minimize the emotional and financial conflicts inherent in ending the parties’ marriage.”7
Protracted, high conflict family law litigation is often characterized by: (1) “several or frequent changes in lawyers,” (2) “frequent court hearings,” (3) “the overall length of time it takes for the case to resolve” and (4) “a history of contact or timesharing denial [with minor children].8 ” Delays and the overall time it takes a case to resolve may also impact a parent’s constitutional due process rights. Parents have a constitutionally protected “inherent right” to a meaningful relationship with their children.9 Protracted, high conflict litigation can interfere with parents’ abilities to have a parenting order that ensures a meaningful ongoing relationship with their children. It may take considerable time to reach resolution on parenting time issues, especially where consensus is not possible. In other states parents have a right to utilize arbitration to try to expedite resolution of their child custody disputes.10
“The effect of protracted and high conflict litigation on children as a group [is that] it roughly doubles rates of emotional and behavioral adjustment problems.”11 Children whose parents contest custody through the traditional legal process often live in “emotional and existential limbo for months, often years, until custody issues are resolved.”12 All people involved in family law litigation experience a much greater psychosocial impact than those involved in other types of litigation.13 Family law litigants can experience “particularly intense” stress and litigation fatigue.14 “[Traditional] adversarial litigation may involve delay tactics in the hope that protracted litigation will wear the other party down.”15 Family law litigants often enter the process looking for resolution to an urgent, very emotional and important conflict only to experience “delays associated with repeated scheduling changes, postponements and continuances.”16 Empirical data studies have shown that delay is a major stressor for families involved in family law litigation.17, 18
In addition to the typical delays, Tennessee family law litigants now also face seeking resolution while courts are working through the unavoidable backlog of cases the pandemic created.19 Offering guidance for family law arbitration will give Tennessee family law litigants access to an additional alternative dispute resolution process with a decision-making neutral. The TDRAA would give families a more discreet alternative dispute resolution process that does not require complete consensus during a time in their lives when speed and privacy can make all the difference. The loss of privacy and delayed resolution in very private family matters comes at a great cost to family law litigants, both emotionally and financially. Tennessee families need an alternative dispute resolution process with a decision-making neutral, so they do not have to resign themselves to such an emotionally and financially taxing fate.
The Tennessee Legislature Should Adopt TDRAA
For these reasons, the executive council of the TBA Family Law Section drafted the Tennessee Domestic Relations Arbitration Act (TDRAA), SB710/HB1177, sponsored by Sen. John Stevens (R-Huntingdon) and Rep. Johnny Garrett (R-Goodlettsville). 20 The TDRAA creates a road map for family law practitioners and litigants to use arbitration in domestic relations matters. Allowing domestic relations arbitration would give docket relief where parties could resolve matters with a decision subject to review and approval or, in certain circumstances, a rehearing by the presiding judge. This would allow judges to have fewer pending matters and more time to hear parties needing urgent relief, including domestic violence order of protection hearings entitled to be heard within 15 days of service.21 Having high conflict, high asset cases in arbitration allows other, non-family law court cases to proceed more quickly to trial. Like mediation, every arbitration case will first need to be filed with the court and then parties will request arbitration or request to enforce any prior agreement to arbitrate. Ultimately, the court approves the arbitrator’s award to fully adjudicate the case. Though it does not reduce the number of case filings, arbitration could mean the courts are less occupied with domestic issues overall.
Under the TDRAA, parties can voluntarily elect to use the domestic relations arbitration process. The proposed TDRAA offers Tennessee family law litigants: (1) the ability to exercise a degree of control and self-determination regarding their resolution process, (2) equal access to arbitration for dispute resolution and (3) a less expensive and more expeditious resolution process than the traditional court proceeding. Family law litigants would not be forced to choose between a lengthy and costly trial or reaching consensus to resolve their cases.
In addition to an expedited procedural process, the TDRAA requires the arbitrator to issue a ruling within a specific timeline. Under the TDRAA, an arbitrator must make an award within 30 days of the hearing and then the court must confirm, vacate, alter, or amend the award within 60 days.
The TDRAA specifically provides for all the following:
a. Preserves the trial court’s common law duty to protect children by reviewing the arbitral record and deciding whether the laws of the state were followed and whether the award was in the best interest of the child (§ 16(c), § 18(d) & (f));
b. Includes guardrails for victims of child abuse and domestic violence by staying the arbitration proceeding if abuse is discovered and allowing the arbitrator to make a temporary award to keep the child or party safe (§ 12);
c. Properly restricts the ability of the arbitrator to address matters best left to the discretion of the court, such as granting a divorce or annulment, terminating parental rights, granting an adoption or guardianship of a child, . . . (§ 3);
d. Gives the arbitrator broad powers to make awards on matters within their express authority and imposes duties on arbitrator to act fairly, expeditiously and cost effectively by having the authority to issue subpoenas, permit evidentiary depositions of witnesses unable to attend or who cannot be subpoenaed, and issue protective orders to maintain confidentiality (§ 14);
e. Protects confidentiality of the arbitration by permitting sealed or redacted documents as part of the record to the same extent as a judge, but also permits the parties to agree to not record or file documents unless there is a challenge to the award (§ 19 & § 15);
f. Promotes closure of the dispute by requiring the arbitrator to make an award within 30 days after the hearing, and the court to confirm, vacate, alter or amend within 60 days after the arbitrator’s award (§ 16 & § 18);
g. Provides for the arbitrator to alter or amend its award upon specific and limited basis (§ 17);
h. Provides for confirmation, vacating, alteration or amendment of the award upon specific and limited basis, except if it is a child-related dispute award (§ 18); and
i. Specifies the appeal is limited to whether the court abused its discretion in confirming or denying an award, denying a motion to compel arbitration or granting an application to stay arbitration. (§ 20).
Having a certain degree of control and self-determination has been shown to reduce the negative psychological impact on family law litigants, especially where they also experience reduced delay and costs. The TDRAA could help family law parties get through the process with less negative financial impact, less delay, and a greater sense of psychological wellness, even where they could not reach consensus in mediation.
Domestic Relations Arbitrationis Beneficial to Families and Courts
Arbitration offers litigants various benefits over mediation. Like other litigants, family law litigants should be able to choose to engage in arbitration where the litigants determine their neutral (arbitrator). Under Tennessee law, corporations and employers already engage in this process and can select a neutral arbitrator to resolve their disputes. The neutral arbitrator is often someone with expertise in the relevant area of practice (construction, contracts, etc.). The TDRAA would allow family law litigants to select an arbitrator with experience litigating or deciding family law disputes. Parties could engage in arbitration with the assistance of this decision-making neutral to keep it fair, expeditious and cost-effective.
In the parties’ arbitration agreement, they will have a degree of control and self-determination in the resolution process as they can: (1) agree to limit their discovery requests, i.e. by exchanging critical information in a sworn format with supporting documents; (2) exchange the confidential information without filing those documents with the court, avoiding a permanent and public court record of their personal and financial information; (3) choose dates and times for hearings that are convenient for the parties and their children instead of the court’s docket dictating hearing dates and times; (4) set their hearings on consecutive days instead of the court’s next available date; and (5) obtain finality on issues of property, spousal support and other issues without the need for consensus between the parties. In child-related disputes, the TDRAA preserves the court’s parens patriae duties.22 At sections 16 and 18, the TDRAA applies the same standard used to confirm agreed parenting plans and reserves the court’s right to rehear.
A voluntary option to allow Tennessee family law litigants to select arbitration would benefit families in two primary ways: by increasing procedural efficiencies and reducing negative psychological impact from protracted litigation. Family law litigants engaging in arbitration would get the benefit of: (a) increased privacy of their dispute resolution; (b) an arbitrator with specialized expertise; (c) tailored discovery to specific disputed issues; (d) streamlined evidentiary issues; (e) an opportunity to limit the length of trial brief and other filings; (f) avoiding piecemeal resolution, and (g) eliminating appearances before multiple different decision-makers before an ultimate ruling on a temporary relief issue, i.e., divorce referees, special masters and a judge or chancellor. If they chose voluntarily to opt into arbitration, Tennessee family law litigants and their families would no longer have to sit in crowded courtrooms waiting to be heard, engage in hearings pertaining to very personal and sensitive issues in a courtroom full of random uninterested strangers, experience unavoidable delays due to over-crowded or backlogged court dockets, experience interruptions due to other cases taking imposed precedent, such as jury trials or order of protection hearings, or lose working hours because utilizing arbitration will allow them to schedule their own hearings using a flexible, self-directed scheduling system, saving time and money.
Not only is arbitration cost and time effective, but it is also healthier for the litigants and their children. Psychological research reveals that protracted family law litigation has a profound negative impact on family law litigants and their children.23, 24 Multiple psychological studies have found that “delay, alone, prevents clients from moving on psychologically and from developing a sense of ‘completion’ or emotional closure.”25 Protracted litigation creates risk of misinterpreted psychological results in court-ordered “psycholegal opinions.”26 Domestic relations arbitration could reduce litigation expenses, positively impacting a family’s post-resolution standard of living.27 “A typical [litigated] divorce case consumes a substantial part of the wealth available to the parties, often reducing each party’s future standard of living.”
Many custody cases go on for more years, even to the extent that children reach the age of majority by the time the case is heard, or appeal concluded. In relocation cases, often the relocating parent is placed at a disadvantage due to time restraints, with no ability to have a neutral hear the case quickly and cost effectively. Finally, litigants could benefit from choosing the decision-maker to hear their private matter in a private setting at a time convenient for them.28
Giving Tennessee families the opportunity to choose arbitration will help them get through the legal process with a greater sense of psychological wellness by reducing delay and giving them a final decision and closure. Allowing Tennessee families to choose their arbitrator and to engage in the arbitration process gives them a certain degree of control and self-determination in the resolution process.29, 30 While mediation is widely used in family law cases in Tennessee, it may not be the appropriate dispute resolution for all families. Alternative dispute resolution processes requiring consensus may not be appropriate in situations where there has been past coercion or imbalances of power in between the parties.31 Family law litigants often have power imbalances, emotionally and financially. Whether there is an imbalance of power or not, economic resources often become strained by delays, rescheduling and the cost of paying multiple attorneys, before parties are able to reach final resolution.32
Conclusion
The Tennessee General Assembly should adopt the TDRAA. Giving Tennessee families the ability to voluntarily opt into arbitration could help reduce the delay, costs and negative mental health impacts family law litigants experience on their road to resolution. Tennessee families deserve equal access to all alternative dispute resolution processes, not just processes that require consensus, to help preserve their financial and mental well-being and to ultimately help to preserve the long-term relationships between these litigants and their children.
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