Academic journal article The University of Memphis Law Review

Alternative Dispute Resolution-Tuetken V. Tuetken: Reinforcing the Duty of the Court to Protect the Best Interests of the Child

Academic journal article The University of Memphis Law Review

Alternative Dispute Resolution-Tuetken V. Tuetken: Reinforcing the Duty of the Court to Protect the Best Interests of the Child

Article excerpt

I. INTRODUCTION ....................831

II. Modifying Judicial Review Provisions of Arbitration Awards.................... 833

III. The Court's Duty to Act in the Best Interests of the Child.................... 840

IV. Parenting Issues and Binding Arbitration: Tuetken v. Tuetken ....................844

V. Conclusion ....................849

I. Introduction

As court systems become more congested, the importance of identifying possible solutions to relieve the courts of overburdened dockets increases. The recent spread of arbitration into family law, however, raises concerns about the substance of disputes that should be amenable to arbitration, particularly issues surrounding dependent minors.1 Divorce proceedings raise unique problems for courts because of the historically deferential treatment granted to parents in determining what is best for hearth and home. The welfare of minor dependents compounds these problems because courts must balance their duty as parens patriae against the rights of parents to arbitrate the proceeding privately. The dramatic rise in divorce over the last twenty years has forced courts to address these issues with increasing frequency.

In 2010, the Tennessee Supreme Court ("Supreme Court") addressed the rights of parties to modify the scope of judicial review in arbitration proceedings and analyzed what rights parents have with respect to arbitration when undergoing divorce proceedings.3 The Supreme Court held, that the rights of parents to modify the scope of judicial review in arbitration proceedings were confined to the relevant scope of the Tennessee Uniform Arbitration Act ("TUAA"), and additionally reaffirmed the court's duty as parens patriae by forbidding parents to submit parenting issues to binding arbitration. Tuetken v. Tuetken, 320 S.W.3d 262, 263 (Term. 2010). The Supreme Court's holding serves judicial interests in two ways. First, the ruling guards against exploitation and provides a uniform standard by restricting parents from crafting customized review clauses that expand judicial review in arbitration beyond the relevant scope of either TUAA or Tennessee Supreme Court Rule 31 ("Rule 3 1").4 Second, the ruling reinforces the court's duty to protect the best interests of children by denying parents the ability to submit parenting issues to binding arbitration.5

II. MODIFYING JUDICIAL REVIEW PROVISIONS OF ARBITRATION AWARDS

As judicial economy becomes more of a societal concern, alternative dispute resolution options such as arbitration will continue to increase in popularity. Both the Federal Arbitration Act ("FAA") and TUAA were adopted "to promote private settlement of disputes, thereby bypassing the courts."7 Federal courts, however, have placed several significant checks on judicial review of arbitration awards, especially attempts to modify judicial review.8

In Hall Street Associates, L.L.C, v. Mattel, Inc.,9 the United States Supreme Court delivered the coup de grâce10 and proffered a rule that limited the scope of judicial review in arbitration proceedings to FAA. ' In Hall Street, a landlord-tenant dispute arose over which party would bear the environmental clean-up costs after the tenant, Mattel, had contaminated ground water through its manufacturing operations.12 After a failed mediation attempt, the parties consented to arbitration and submitted an arbitration agreement which provided that the district court "shall vacate, modify or correct any award: (i) where the arbitrator's findings of facts are not supported by substantial evidence, or (ii) where the arbitrator's conclusions of law are erroneous."13 The district court invoked the specific standard of review chosen by the parties and vacated and remanded the case for another round of arbitration.14

Following two separate modifications by the district court and two reversals by the United States Court of Appeals for the Ninth Circuit, the United States Supreme Court granted certiorari to determine whether parties may modify the scope of review beyond the provisions provided by FAA. …

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