Family Law Arbitration Rules
Scope and application of rules: If there is any conflict among these rules, the parties’ arbitration agreement, and the applicable state arbitration statutes, the parties’ arbitration agreement shall control.
1.Definitions
a.Final and Binding Arbitration. The hearing and determination of one or more issues in a family law case or controversy by an arbitrator instead of a judge. The arbitrator’s award, unless modified by the court, is final and binding. The term award may be used interchangeably with the term decision if the context requires.
b.Arbitrator(s). An attorney certified as a family law arbitrator or a panel, with at least one attorney certified as a family law arbitrator, chosen by the parties to conduct the hearing and determination of a family law case or controversy.
c.Family Law Arbitration Agreement. A written contract between the parties that meets the criteria in section 2.b. of these rules.
d.Disputed Issues. Issues that the parties cannot agree on between themselves that are material to resolution of the family law case or controversy.
e.Award. The document containing the findings of fact, conclusions, and award of the arbitrator.
f.Subpoena. A document requiring someone to appear at a hearing.
g.Subpoena Duces Tecum. A document requiring someone to appear at a hearing and to bring certain papers or records to the hearing.
h.Day. If the last day by which an act in these proceedings must be accomplished falls on a weekend or a holiday, the act shall be accomplished on the next regular working day.
2.Commencement of Procedures
a.Subject of Arbitration. Arbitration in a family law case shall begin with the execution of a Family Law Arbitration Agreement between the parties and their attorneys or by a demand for arbitration provided for in a premarital, marital, or divorce agreement between the parties. Except for the issue of granting a divorce, any matters arising from a family law case, as well as postjudgment matters involving modification or revision of judgment, may be submitted to arbitration. The arbitrator can decide only the issues that are specifically identified in the Family Law Arbitration Agreement or covered by the premarital, marital, or divorce agreement.
b.Terms of Agreement. The Family Law Arbitration Agreement is a written contract that must contain at least the following:
i.A provision that the proceedings shall be in accordance with the provisions of the Texas Alternative Dispute Resolution Procedures Act (chapter 154 of the Texas Civil Practice and Remedies Code); the Texas General Arbitration Law (chapter 171 of the Texas Civil Practice and Remedies Code); applicable provisions of the Texas Family Code, including but not limited to sections 6.601 and 153.0071(a) and (b); and the laws of the state of Texas.
ii.A provision that the proceedings shall be governed by these rules.
iii.A provision regarding whether a record is to be made of the proceedings.
iv.A specific statement of each disputed issue to be decided by arbitration. If arbitration is demanded by one party under the terms of a premarital, marital, or divorce agreement, a copy of the agreement shall be attached to the arbitration demand.
v.Notice that there are limited statutory rights to change, vacate, and modify the award under Texas law.
c.Time of Arbitration. The arbitration process may occur before or after the family law action is filed, at a time agreed to by the arbitrator and the parties.
d.Continuances. Except by stipulation of the parties or for good cause shown, no continuances or postponements of the date initially set for hearing shall be granted by the arbitrator. If one of the parties fails to appear for the hearing(s), the arbitrator may proceed to determine the controversy. However, this provision does not prevent the arbitrator from granting adjournments that in his or her judgment may be required to permit a full and fair presentation of all material facts to facilitate resolution of the issues presented.
e.Qualification of Arbitrator. Any arbitrator appointed under these rules shall be neutral and impartial. The arbitrator shall disclose to the parties any circumstance likely to affect impartiality, including any bias or financial or personal interest in the result of the arbitration and any past or present business or professional relationship with the parties or their counsel. The arbitrator will conduct the proceedings with dignity and fairness. The arbitrator’s communication with the parties and with their attorneys shall avoid any appearance of impropriety.
Any attorney serving as an arbitrator hearing a family law case (except a panel where there shall be at least one attorney) shall be an attorney certified as a family law arbitrator, licensed to practice law in the state of Texas, or have prior judicial experience in determining family law matters. In controversies involving a single issue requiring special expertise, the parties may stipulate to arbitration of that limited issue by a nonattorney expert.
f.Arbitrator’s Fees and Costs. As part of the Family Law Arbitration Agreement, the parties and the arbitrator shall agree in writing on reasonable fees and costs and on an amount to be paid in advance and credited against fees and costs incurred. How the arbitrator’s fees are to be paid, and by whom, shall be agreed in advance by the parties. The arbitrator may assess fees or costs against a party or counsel obtaining a continuance or adjournment or failing to comply with these rules.
g.Representation by Counsel. Any party may be represented by counsel. A party intending to be represented shall notify the other party and the arbitrator of the name and address of counsel. Counsel shall personally notify the arbitrator and the opposing party or counsel immediately on undertaking representation in a pending arbitration proceeding.
3.Discovery and Prehearing Procedures
a.Prehearing Conference with Arbitrator. The parties or their attorneys shall confer with the arbitrator and each other as soon as practicable after the arbitrator’s selection to consider and establish all the following matters:
i.The scope and extent of the issues submitted.
ii.The time, date, and place for the hearing.
iii.The experts, if any, who will testify and a schedule for exchange of reports of all experts, or a summary of testimony of all expert witnesses, unless the expert’s deposition has already been taken. The parties may notify the arbitrator before the hearing that by agreement the report of an expert may be considered by the arbitrator without cross-examination; in that case, the expert need not testify.
iv.Any witnesses other than the parties who are to be called, their full addresses and phone numbers, and a brief statement of the expected testimony.
v.All exhibits or documents each party considers material to his or her case in chief and a reasonable schedule for production and/or exchange of those items.
b.Discovery
i.Each party is entitled to reasonable access to information in the possession of the other party that is material to resolution of the issue(s) submitted. Reciprocal exchange of information is essential to orderly resolution of the proceedings. Therefore the parties are required to exchange the documents and information that the arbitrator establishes at a prehearing conference and that are required by rule 3.c.
ii.All discovery shall be completed before the date of the hearing. Any objections to use of any document so exchanged shall be made before the hearing or shall be deemed waived.
c.Document Exchange. Documents that are to be exchanged before the hearing include (1) a full, complete, and accurate sworn Inventory and Appraisement in the form and detail prescribed by the current edition of Texas Family Law Practice Manual if property division is at issue; (2) complete copies of federal income tax returns for at least the three years before the hearing; (3) a full and complete copy of all custody investigations and evaluations; (4) if a postjudgment matter, copies of all court orders and a complete statement of gross and net incomes (including assets and debts) of the parties, together with copies of each party’s applicable income tax returns; (5) each party’s statement of proposed resolution of each issue in controversy; and (6) any other agreed documents or documents requested by the arbitrator.
d.Communication with Arbitrator. If counsel or a party corresponds with the arbitrator, a copy of all the correspondence shall be contemporaneously mailed to the opposing party or to counsel if one appears of record. There shall be no ex parte communications between the parties or their counsel and the arbitrator, except for such purposes as arranging ministerial matters such as times, dates, and physical arrangement of hearings and the like.
4.Hearing Procedures
a.Interpreters. Any party wishing an interpreter shall make all arrangements directly with the interpreter and shall notify the other party and the arbitrator of the arrangements before the hearing. Initially, the requesting party shall pay all costs of the interpreter, subject to assessment of the expense by the arbitrator as part of the award.
b.Attendance at Hearing. Hearings are private. The parties are required to attend all hearings. Unless otherwise agreed, the arbitrator shall require all actual or potential witnesses, except the parties, to be excluded from the hearing room, except during the testimony of that witness.
c.Oaths. The arbitrator shall require each witness to swear or affirm the truth of his or her testimony. The arbitrator is authorized to administer the appropriate oath or affirmation.
d.Record
i.The parties shall agree in the Family Law Arbitration Agreement whether there should be a transcript of the proceedings. However, the arbitrator may determine on application of a party that all or part of the proceedings shall be transcribed and how to allocate the transcript cost.
ii.If and when the arbitrator’s award has been confirmed by the court, unless ordered otherwise by the court, all evidence and exhibits shall be returned to the attorney or party who provided them.
iii.The proceedings may be tape-recorded by the arbitrator, solely for the arbitrator’s review and reference.
e.Subpoenas. The arbitrator shall have the right to use the subpoena process as provided by Texas law. All parties shall be given a copy of a subpoena when it is issued. Parties are encouraged to produce witnesses and present proofs to the fullest extent possible without resort to the subpoena process.
f.Power to Direct Appearances and Production of Documents. The arbitrator is empowered to direct the appearance of any person or the production of any records properly subject to process in the jurisdiction where the arbitration occurs. Unless the arbitrator directs otherwise, the party requesting the appearance of a person or the production of documents under this section shall bear all reasonable costs of the appearance or production.
g.Order of Proceedings and Evidence. The order of proceedings shall be determined by the arbitrator. The arbitrator shall have broad discretion about how testimony and evidence shall be received. Hearings may be informal. In addition to direct testimony from parties and witnesses, the arbitrator may receive as evidence documents and affidavits, if previously exchanged as required by the prehearing conference or exchange in rule 3.c. Unless specifically otherwise agreed to, the arbitrator need not strictly adhere to the Texas Rules of Evidence, to the Texas Rules of Civil Procedure, or to any statutory or case law concerning the presentation or receipt of evidence as long as all parties have a fair opportunity to present evidence on their own behalf and respond to evidence offered by the other party.
h.Arbitrator’s Right to Interview a Child in Custody-Related Matters. The arbitrator is authorized to interview a child privately, out of the presence of the parties and their counsel, to ascertain the needs and wishes of the child about custody arrangements, physical placement, visitation, and the like. The arbitrator, in conducting such an interview, shall make every effort to avoid placing the child in a position where the child is encouraged or required to make a choice between parents or to reject one parent in favor of the other. A stenographic or tape-recorded record of the interview may be made. If a guardian ad litem has been appointed, he or she shall be present during each interview.
i.Closing the Hearing. When all the evidence is concluded, the arbitrator shall specifically inquire of each party whether he or she has any further witnesses to be heard or evidence to offer; if not, the arbitrator shall declare the hearing closed. If further documents are to be filed, the hearing shall be declared closed as of the final date set by the arbitrator for submission of the documents.
j.Waiver of Oral Hearing. The parties may, by written agreement, waive any oral hearing and agree to resolution of the case or controversy based solely on written evidence and arguments. The agreement shall provide the procedure to be used by the arbitrator, subject to agreement by the arbitrator.
5.Professional Opinions about the Best Interests of the Child. If the arbitrator believes that the opinion of a mental health professional is necessary or helpful, the arbitrator shall encourage the parties to mutually agree on an evaluator. If the parties cannot agree on a specific mental health professional to conduct an evaluation or on the payment of costs, the arbitrator may enter an appropriate order for the appointment of a mental health professional, payment of costs, or both. A written report shall be submitted to the arbitrator and both parties before the hearing.
6.Inspection or Investigation. Any inspection or investigation of premises or property by the arbitrator shall occur only in the presence of the parties or their attorneys or after written notice by the arbitrator setting a time and place for the inspection or investigation. Any party or attorney who desires may be present at the inspection or investigation. If one or both of the parties or attorneys are not present at an inspection or investigation, the arbitrator shall make a written report of the inspection or investigation to the parties.
7.Reopening of Hearings. The hearing may be reopened before the award is rendered either in the discretion of the arbitrator, on agreement of the parties, or on application of a party for good cause shown.
8.Waiver of Rules. Proceeding with arbitration at any stage, after knowledge that a provision or requirement of these rules has not been fully complied with, and failure to make a timely written objection on knowledge that there has been a breach of these rules constitute a waiver of the right to object.
9.The Award
a.Procedure. The arbitrator shall prepare and mail, fax, or deliver a copy of the award to the parties or attorneys within the time agreed on or set by the arbitrator, after the hearing is closed or the final briefs are submitted, whichever is later. This time may be modified by agreement of the parties and the arbitrator. If no party moves for correction or modification of the award within twenty days after the award is delivered, the arbitrator shall thereafter file the award with the court.
b.Contents of the Award. The arbitrator’s award shall set forth:
i.The court, cause number, and full case name, if any;
ii.The arbitration agreement;
iii.The stipulation(s) of the parties, if any;
iv.The findings of the arbitrator on each issue submitted, if requested by the parties;
v.The determination of the arbitrator on each issue submitted;
vi.The signature of the arbitrator and date of the award;
vii.The parties’ relevant documents and any relevant evidence, worksheets, schedules, exhibits, or balance sheets.
If deemed appropriate, the arbitrator may issue a separate award on each of the separate issues submitted for arbitration.
c.Change of Award by Arbitrator. On motion of a party, and in accordance with these rules, the arbitrator may modify or correct the award if:
i.There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award;
ii.The arbitrator has awarded on a matter not submitted, unless it is a matter not affecting the merits of the award on the issues submitted; or
iii.The award is imperfect in matter of form not affecting the merits of the controversy.
d.Motion for Modification or Correction. A motion for modification or correction, including all supporting affidavits, shall be served on all other parties and filed with the arbitrator within twenty days after the award is filed or delivered. A party opposing the motion for modification or correction shall file with the arbitrator and serve on all other parties written opposition to the motion and supporting affidavits no later than ten days after the date the motion is filed and served. The arbitrator shall decide any such motion solely on the motions and affidavits submitted. Any modification or correction of the award must be mailed or delivered to the parties or their attorneys within ten days of the expiration time for arbitrator’s receipt of the final submission. The modified or corrected award shall supersede the original award and be the award filed with the court for confirmation.
10.Motion to Vacate Award. The award of the arbitrator may be vacated by the court in accordance with section 171.088 of the Texas Civil Practice and Remedies Code, which includes in part the following circumstances for vacating an award:
a.The award was procured by corruption, fraud, or other undue means;
b.There was evident partiality, misconduct, or willful misbehavior by the arbitrator;
c.The arbitrator exceeded the arbitrator’s powers.
11.Filing of Award with Court. The arbitrator’s final award shall be filed with the court five business days after the expiration of all relevant time periods stated in these rules.
12.Appeal of Award. If, in their arbitration agreement, the parties reserved a right of appeal on the merits of the case and a party desires to appeal the award, the appeal shall proceed in the manner provided in the arbitration agreement or by statute.