Getting arbitration awards turned into court orders (or preventing it from happening)

Posted Thursday, October 5th, 2017 by Gregory Forman
Filed under Family Court Procedure, Mediation/Alternative Dispute Resolution, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Many of my colleagues are turning to arbitration to resolve family law disputes. Few seem aware that an arbitrator’s award does not automatically become a valid court order. South Carolina’s Uniform Arbitration Act, Title 15, Chapter 48, sets forth procedures to challenge or obtain court approval of an arbitration award.

S.C. Code §15-48-120 addresses “Confirmation of an award”:

Upon application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in Sections 15-48-130 and 15-48-140.

Thus, one must apply to the court to“confirm” an award before it can be made a court order. That code section contains two methods by which an aggrieved party may ask the court to modify or reject the arbitrator’s award. Code section 15-48-130 addresses “Vacating an award.”

(a) Upon application of a party, the court shall vacate an award where:

(1) The award was procured by corruption, fraud or other undue means;

(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;

(3) The arbitrators exceeded their powers;

(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 15-48-50, as to prejudice substantially the rights of a party; or

(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 15-48-20 and the party did not participate in the arbitration hearing without raising the objection;

But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

(b) An application under this section shall be made within ninety days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety days after such grounds are known or should have been known.

(c) In vacating the award on grounds other than stated in item (5) of subsection (a) the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with Section 15-48-30, or, if the award is vacated on grounds set forth in items (3) and (4) of subsection (a) the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with Section 15-48-30. The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.

(d) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

Code section 15-48-140 addresses “Modifying an award.”

(a) Upon application made within ninety days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:

(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

(2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

(3) The award is imperfect in a matter of form, not affecting the merits of the controversy.

(b) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.

(c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.

Once the court confirms an arbitration award it become a judgment, no different or less enforceable than a judgment issued by the court itself. S.C. Code §15-48-150 and 160.

S.C. Code §15-48-170 sets forth the procedure to confirm, modify or vacate arbitration awards:

Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.

A party aggrieved by the arbitrator’s decision also has the ability to ask the arbitrator to change the award. S.C. Code § 15-48-100 sets forth the procedures and grounds for doing so:

On application of a party or, if an application to the court is pending under Sections 15-48-120, 15-48-130, 15-48-140, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in paragraphs (1) and (3) of subdivision (a) of Section 15-48-140, or for the purpose of clarifying the award. The application shall be made within twenty days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating he must serve his objections thereto, if any, within ten days from the notice. The award so modified or corrected is subject to the provisions of Sections 15-48-120, 15-48-130 and 15-48-140.

Due to limited appellate rights, I’m not a big fan of family court arbitration. I will have my clients arbitrate issues that are not worth appealing: minor disputes over custody (whether one parent should get four weeks or five weeks during summer); equitable distribution of personal property. Some cases the parties already have a binding court order that mandates arbitration–in which case I am forced to arbitrate their disputes. As noted above, there are limited methods to challenge an arbitrator’s decision and set deadlines for doing so. However, there is also a requirement of getting an arbitration award confirmed before seeking to enforce it. Knowing these rules can enable a party to enforce an arbitration award or, in limited circumstances, allow the court or the arbitrator to vacate or modify the award. Despite my relative disinterest in family court arbitration it is still worth learning how to get these awards turned into court orders or preventing this from occurring.

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