The Tennessee Bar Association (TBA) asks the Tennessee Supreme Court to adopt a new rule allowing the voluntary arbitration of family-law matters.

In its Petition, the TBA notes that using consensual family-law arbitration is a growing method of alternative dispute resolution already approved in Arizona, Hawaii, North Dakota, and Montana and under consideration in Pennsylvania, the District of Columbia, and Massachusetts.

The TBA cites these benefits:

• Unlike court proceedings, arbitration hearings are not public, and unless the arbitrator’s award is challenged, they can remain private.
• The arbitration process is flexible. The parties’ ability to select the arbitrator is a crucial attraction because the parties may choose arbitrators with uniquely qualified experience in family-law cases. The parties also decide how the arbitration is conducted, i.e., planning discovery, determining costs, etc.
• Arbitration can move forward without regard to judicial calendars, which often allows a quicker disposition than litigation. Instead, the parties can set deadlines that coincide with their schedules, e.g., weekend hearings, and set up a strict discovery schedule focused on the prompt and early exchange of necessary information.
• Arbitration of child-custody disputes may minimize the harmful effects of divorce litigation for both children and parents because arbitration is conducted in a less formal atmosphere and often in a shorter time than a trial.

Arbitrators would have the authority to issue subpoenas, meet with the parties’ child, appoint an expert, appoint a guardian ad litem, award attorney’s fees and expenses, issue a protective order, etc.

The TBA acknowledges that arbitration relinquishes judicial oversight significantly and limits a party’s ability to challenge the arbitrator’s decision in court. This is of particular concern in matters involving children, where Tennessee law requires the court to decide the outcome is in the child’s best interest.

To remedy this, the TBA proposes that such decisions be subject to “a heightened review” by a judge who must find that the arbitrator’s decision is in the child’s best interest. The judge may choose to hear additional evidence or conduct a rehearing when reviewing decisions involving children.

The proposed rule prohibits an arbitrator from granting a divorce, terminating parental rights, granting an adoption, declaring a child dependent and neglected, or determining civil or criminal contempt issues.

It also requires that an arbitrator be trained in arbitration, have practiced law for at least 10 years, and have devoted at least 50% of their time to family-law matters over the past five years.

The TBA’s petition was to all the local bar associations for comment.

You can read the TBA’s petition here, the proposed Rule 31B here, and the proposed statutory changes here.

UPDATE: On November 1, 2021, the Tennessee Supreme Court denied the TBA’s petition without explanation. A lot of volunteer work went into drafting the petition, proposed rule, and proposed statutory changes. Whatever the Court’s decision, the members of the Bar deserve some explanation.

Petition to Adopt Supreme Court Rule 31B (Tennessee Bar Association, September 29, 2021).

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