19.0519.01000
Sixty-sixth
Legislative Assembly SENATE BILL NO. 2063
of North Dakota
Introduced by
Judiciary Committee
(At the request of the Commission on Uniform State Laws)
1 A BILL for an Act to create and enact chapter 32-29.4 of the North Dakota Century Code,
2 relating to adoption of the Uniform Family Law Arbitration Act.
3 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
4 SECTION 1. Chapter 32-29.4 of the North Dakota Century Code is created and enacted as
5 follows:
6 32-29.4-01. Definitions.
7 In this chapter:
8 1. "Arbitration agreement" means an agreement that subjects a family law dispute to
9 arbitration.
10 2. "Arbitration organization" means an association, agency, board, commission, or other
11 entity that is neutral and initiates, sponsors, or administers an arbitration or is involved
12 in the selection of an arbitrator.
13 3. "Arbitrator" means an individual selected, alone or with others, to make an award in a
14 family law dispute that is subject to an arbitration agreement.
15 4. "Child-related dispute" means a family law dispute regarding parenting time, or
16 financial support regarding a child.
17 5. "Court" means the district court.
18 6. "Family law dispute" means a contested issue arising under the domestic relations law
19 of this state.
20 7. "Party" means an individual who signs an arbitration agreement and whose rights will
21 be determined by an award.
22 8. "Person" means an individual, estate, business or nonprofit entity, public corporation,
23 government or governmental subdivision, agency, or instrumentality, or any other legal
24 entity.
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1 9. "Record", used as a noun, means information inscribed on a tangible medium or
2 stored in an electronic or other medium and is retrievable in perceivable form.
3 10. "Sign" means, with present intent to authenticate or adopt a record:
4 a. To execute or adopt a tangible symbol; or
5 b. To attach to or logically associate with the record an electronic symbol, sound, or
6 process.
7 11. "State" means a state of the United States, the District of Columbia, Puerto Rico, the
8 United States Virgin Islands, or any territory or insular possession subject to the
9 jurisdiction of the United States. The term includes a federally recognized Indian tribe.
10 32-29.4-02. Scope.
11 1. This chapter governs arbitration of a family law dispute.
12 2. This chapter does not authorize an arbitrator to make an award that:
13 a. Grants a legal separation, divorce, or annulment;
14 b. Terminates parental rights;
15 c. Grants an adoption or a guardianship of a child or incapacitated individual;
16 d. Determines the status of dependency; or
17 e. Determines a child-related dispute.
18 32-29.4-03. Applicable law.
19 1. Except as otherwise provided in this chapter, the law applicable to arbitration is
20 chapter 32-29.3.
21 2. In determining the merits of a family law dispute, an arbitrator shall apply the law of
22 this state, including its choice of law rules.
23 32-29.4-04. Arbitration agreement.
24 1. An arbitration agreement must:
25 a. Be in a record signed by the parties;
26 b. Identify the arbitrator, an arbitration organization, or a method of selecting an
27 arbitrator; and
28 c. Identify the family law dispute the parties intend to arbitrate.
29 2. An agreement in a record to arbitrate a family law dispute that arises between the
30 parties before, at the time, or after the agreement is made is valid and enforceable as
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1 any other contract and irrevocable except on a ground that exists at law or in equity for
2 the revocation of a contract.
3 3. If a party objects to arbitration on the ground the arbitration agreement is
4 unenforceable or the agreement does not include a family law dispute, the court shall
5 decide whether the agreement is enforceable or includes the family law dispute.
6 32-29.4-05. Notice of arbitration.
7 A party may initiate arbitration by giving notice to arbitrate to the other party in the manner
8 specified in the arbitration agreement or, in the absence of a specified manner, under the law
9 and procedural rules of this state other than this chapter governing contractual arbitration.
10 32-29.4-06. Motion for judicial relief.
11 1. A motion for judicial relief under this chapter must be made to the court in which a
12 proceeding is pending involving a family law dispute subject to arbitration or, if no
13 proceeding is pending, a court with jurisdiction over the parties and the subject matter.
14 2. On motion of a party, the court may compel arbitration if the parties have entered an
15 arbitration agreement that complies with section 32-29.4-04 unless the court
16 determines under section 32-29.4-11 the arbitration should not proceed.
17 3. On motion of a party, the court shall terminate arbitration if it determines:
18 a. The agreement to arbitrate is unenforceable;
19 b. The family law dispute is not subject to arbitration; or
20 c. Under section 32-29.4-11, the arbitration should not proceed.
21 4. Unless prohibited by an arbitration agreement, on motion of a party, the court may
22 order consolidation of separate arbitrations involving the same parties and a common
23 issue of law or fact if necessary for the fair and expeditious resolution of the family law
24 dispute.
25 32-29.4-07. Qualification and selection of arbitrator.
26 1. Except as otherwise provided in subsection 2, unless waived in a record by the
27 parties, an arbitrator must be:
28 a. An attorney in good standing admitted to practice or on inactive status or a judge
29 on retired status in a state; and
30 b. Trained in identifying domestic violence and child abuse.
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1 2. The identification in the arbitration agreement of an arbitrator, arbitration organization,
2 or method of selection of the arbitrator controls.
3 3. If an arbitrator is unable or unwilling to act or if the agreed-on method of selecting an
4 arbitrator fails, on motion of a party, the court shall select an arbitrator.
5 32-29.4-08. Disclosure by arbitrator - Disqualification.
6 1. Before agreeing to serve as an arbitrator, an individual, after making reasonable
7 inquiry, shall disclose to all parties any known fact a reasonable person would believe
8 is likely to affect:
9 a. The impartiality of the arbitrator in the arbitration, including bias, a financial or
10 personal interest in the outcome of the arbitration, or an existing or past
11 relationship with a party, attorney representing a party, or witness; or
12 b. The arbitrator's ability to make a timely award.
13 2. An arbitrator, the parties, and the attorneys representing the parties have a continuing
14 obligation to disclose to all parties any known fact a reasonable person would believe
15 is likely to affect the impartiality of the arbitrator or the arbitrator's ability to make a
16 timely award.
17 3. An objection to the selection or continued service of an arbitrator and a motion for a
18 stay of arbitration and disqualification of the arbitrator must be made under the law
19 and procedural rules of this state other than this chapter governing arbitrator
20 disqualification.
21 4. If a disclosure required by subdivision a of subsection 1 or subsection 2 is not made,
22 the court may:
23 a. On motion of a party not later than thirty days after the failure to disclose is
24 known or by the exercise of reasonable care should have been known to the
25 party, suspend the arbitration;
26 b. On timely motion of a party, vacate an award under subdivision b of subsection 1
27 of section 32-29.4-18; or
28 c. If an award has been confirmed, grant other appropriate relief under law of this
29 state other than this chapter.
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1 5. If the parties agree to discharge an arbitrator or the arbitrator is disqualified, the
2 parties by agreement may select a new arbitrator or request the court to select another
3 arbitrator as provided in section 32-29.4-07.
4 32-29.4-09. Party participation.
5 1. A party may:
6 a. Be represented in an arbitration by an attorney;
7 b. Be accompanied by an individual who will not be called as a witness or act as an
8 advocate; and
9 c. Participate in the arbitration to the full extent permitted under the law and
10 procedural rules of this state other than this chapter governing a party's
11 participation in contractual arbitration.
12 2. A party or representative of a party may not communicate ex parte with the arbitrator
13 except to the extent allowed in a family law proceeding for communication with a
14 judge.
15 32-29.4-10. Temporary order or award.
16 1. Before an arbitrator is selected and able to act, on motion of a party, the court may
17 enter a temporary order in accordance with rule 8.2 of the North Dakota Rules of
18 Court.
19 2. After an arbitrator is selected:
20 a. The arbitrator may make a temporary award in accordance with rule 8.2 of the
21 North Dakota Rules of Court; and
22 b. If the matter is urgent and the arbitrator is not able to act in a timely manner or
23 provide an adequate remedy, on motion of a party, the court may enter a
24 temporary order.
25 3. On motion of a party, before the court confirms a final award, the court under section
26 32-29.4-15, 32-29.4-17, or 32-29.4-18 may confirm, correct, vacate, or amend a
27 temporary award made under subdivision a of subsection 2.
28 4. On motion of a party, the court may enforce a subpoena or interim award issued by an
29 arbitrator for the fair and expeditious disposition of the arbitration.
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1 32-29.4-11. Protection of party or child.
2 1. In this section, "protection order" means an injunction or other order, issued under the
3 domestic violence, family violence, or stalking laws of the issuing jurisdiction, to
4 prevent an individual from engaging in a violent or threatening act against, harassment
5 of, contact or communication with, or being in physical proximity to another individual
6 who is a party or a child under the custodial responsibility of a party.
7 2. If a party is subject to a protection order or an arbitrator determines there is a
8 reasonable basis to believe a party's safety or ability to participate effectively in
9 arbitration is at risk, the arbitrator shall stay the arbitration and refer the parties to
10 court. The arbitration may not proceed unless the party at risk affirms the arbitration
11 agreement in a record and the court determines:
12 a. The affirmation is informed and voluntary;
13 b. Arbitration is not inconsistent with the protection order; and
14 c. Reasonable procedures are in place to protect the party from risk of harm,
15 harassment, or intimidation.
16 3. An arbitrator may make a temporary award to protect a party or child from harm,
17 harassment, or intimidation.
18 4. On motion of a party, the court may stay arbitration and review a determination or
19 temporary award under this section.
20 5. This section supplements remedies available under law of this state other than this
21 chapter for the protection of victims of domestic violence, family violence, stalking,
22 harassment, or similar abuse.
23 32-29.4-12. Powers and duties of arbitrator.
24 1. An arbitrator shall conduct an arbitration in a manner the arbitrator considers
25 appropriate for a fair and expeditious disposition of the dispute.
26 2. An arbitrator shall provide each party a right to be heard, to present evidence material
27 to the family law dispute, and to cross-examine witnesses.
28 3. Unless the parties otherwise agree in a record, an arbitrator's powers include the
29 power to:
30 a. Select the rules for conducting the arbitration;
31 b. Hold conferences with the parties before a hearing;
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1 c. Determine the date, time, and place of a hearing;
2 d. Require a party to provide:
3 (1) A copy of a relevant court order;
4 (2) Information required to be disclosed in a family law proceeding under law of
5 this state other than this chapter; and
6 (3) A proposed award that addresses each issue in arbitration;
7 e. Appoint a private expert at the expense of the parties;
8 f. Administer an oath or affirmation and issue a subpoena for the attendance of a
9 witness or the production of documents and other evidence at a hearing;
10 g. Compel discovery concerning the family law dispute and determine the date,
11 time, and place of discovery;
12 h. Determine the admissibility and weight of evidence;
13 i. Permit deposition of a witness for use as evidence at a hearing;
14 j. For good cause, prohibit a party from disclosing information;
15 k. Impose a procedure to protect a party or child from risk of harm, harassment, or
16 intimidation;
17 l. Allocate arbitration fees, attorney's fees, expert-witness fees, and other costs to
18 the parties; and
19 m. Impose a sanction on a party for bad faith or misconduct during the arbitration
20 according to standards governing imposition of a sanction for litigant misconduct
21 in a family law proceeding.
22 4. An arbitrator may not allow ex parte communication except to the extent allowed in a
23 family law proceeding for communication with a judge.
24 32-29.4-13. Recording of hearing.
25 Except as otherwise required by law of this state other than this chapter, an arbitration
26 hearing need not be recorded unless required by the arbitrator, provided by the arbitration
27 agreement, or requested by a party.
28 32-29.4-14. Award.
29 1. An arbitrator shall make an award in a record, dated and signed by the arbitrator. The
30 arbitrator shall give notice of the award to each party by a method agreed on by the
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1 parties or, if the parties have not agreed on a method, under the law and procedural
2 rules of this state other than this chapter governing notice in contractual arbitration.
3 2. The award under this chapter must state the reasons on which it is based unless
4 otherwise agreed by the parties.
5 3. An award under this chapter is not enforceable as a judgment until confirmed under
6 section 32-29.4-15.
7 32-29.4-15. Confirmation of award.
8 1. After an arbitrator gives notice under subsection 1 of section 32-29.4-14 of an award,
9 including an award corrected under 32-29.4-16, a party may move the court for an
10 order confirming the award.
11 2. The court shall confirm an award under this chapter if:
12 a. The parties agree in a record to confirmation; or
13 b. The time has expired for making a motion, and no motion is pending, under
14 section 32-29.4-17 or 32-29.4-18.
15 3. On confirmation, an award under this chapter is enforceable as a judgment.
16 32-29.4-16. Correction by arbitrator of unconfirmed award.
17 On motion of a party made not later than thirty days after an arbitrator gives notice under
18 subsection 1 of section 32-29.4-14 of an award, the arbitrator may correct the award:
19 1. If the award has an evident mathematical miscalculation or an evident mistake in the
20 description of a person, thing, or property;
21 2. If the award is imperfect in a matter of form not affecting the merits on the issues
22