source: Caselaw Access Project

author: LOUIS B. BUTLER, JR., J. DAVID T. PROSSER, J.

license: Public Domain

text:
    In the Matter of the Guardianship of James D.K.: Robin K., Appellant-Petitioner, v. Lamanda M., Respondent.
    Supreme Court

      No. 2004AP767.

      Oral argument October 6, 2005.

      Decided June 13, 2006.

    2006 WI 68
    (Also reported in 718 N.W.2d 38.)

      For the appellant-petitioner there was a brief by Alan J. White and Helland Law Offices, Wisconsin Dells, and oral argument by Alan J. White.

    For the respondent there was a brief by Katherine E. Campbell and LaRowe, Gerlach & Roy, S.C., Reedsburg, and oral argument by Katherine E. Campbell.

   LOUIS B. BUTLER, JR., J.

¶ 1. Robin K. ("Robin") seeks review of an unpublished court of appeals' decision that affirmed an order of the circuit court for Sauk County, Honorable James Evenson, denying Robin's petition for guardianship of James D. K. ("James"). Robin K. v. Lamanda M., 2004AP767, unpublished slip op., ¶ 1 (Wis. Ct. App. Nov. 11, 2004).

¶ 2. At issue in this case is the proper standard a circuit court must impose in considering a guardianship petition involving a minor when a parent objects, pursuant to Wisconsin Statutes Chapter 880 (2003-04). Robin asserts that the circuit court and the court of appeals erred in denying her the guardianship appointment.

¶ 3. We conclude that when a parent objects, a court is authorized under chapter 880 to appoint a nonparent as guardian of a minor if there exist extraordinary circumstances affecting the health or safety of the minor. We further conclude that the record does not support a finding that the required extraordinary circumstances exist in the present case. Accordingly, we affirm the decision of the court of appeals.

HH

¶ 4. Robin filed a petition for guardianship of James on November 5, 2003, under chapter 880 of the Wisconsin Statutes. In the petition, Robin alleged that (1) James had been living with her for the past two and one-half years; (2) both parents had little contact with the child; and (3) both parents were unable to give proper care to James. According to Robin, the guardianship was necessary to allow her to obtain essential services for the child, including medical services, particularly when James traveled with Robin to other states.

¶ 5. James was three years old when the guardianship petition was filed. Robin contends that she had primary responsibility for the care and welfare of James for the vast majority of his life. Robin alleges James had been living with her since he was six months old. According to Robin, Lamanda M. ("Lamanda"), James's mother, refused to financially support her son during the two-and-a-half years prior to the filing of the petition. Robin further asserts that Lamanda voluntarily allowed Robin to care for James up until the point that Robin filed for guardianship.

¶ 6. Lamanda opposed the petition. Lamanda contends that Robin misrepresents the amount of time James truly spent with Robin. Lamanda observes that the circuit court only assumed, for purposes of the decision, that Robin spent a great deal of time with James and made no finding as to the amount of time Robin actually spent with the child.

¶ 7. On December 3, 2003, a hearing was held on Robin's petition for guardianship in Sauk County Circuit Court before the Honorable James Evenson. The guardian ad litem appointed to represent James recommended that the guardianship be granted to Robin. At the hearing, Lamanda asserted that she allowed James to visit with Robin periodically and to go on trips to California at Robin's request. Lamanda disputed Robin's contention that Robin was the primary caregiver for James:

I never thought that I couldn't take care of my son. That's not why I let [Robin] take [James] to California and keep him over night. She would ask me if I would let her take him to California. And, at first, I would let him go. And then, when she was here, she would want to take him for a few days or for a week and I would agree with it, because he likes going over there. I wasn't — that was my family. She was my aunt. I trusted her. I remember going over there when I was a young girl and I would like playing out in the yard and going fishing and going swimming. That's the only reason I let him go over there. I never once thought I wasn't capable enough of taking care of my son.

¶ 8. The circuit court denied Robin's petition for guardianship. The court indicated that it had difficulty with the guardianship statutes in that they did not seem to be designed for a case like the present case. The court expressed concern that the guardianship statutes offered no guidance on commencing a guardianship action, and no standards concerning when and how a guardianship should end.

¶ 9. The circuit court concluded that there was no evidence that Lamanda neglected her children, and that the fact that Human Services had not taken the other children from the home was tacit approval that home placement was appropriate, subject to certain programming. Therefore, the circuit court rejected the recommendation of the guardian ad litem and denied the petition for guardianship.

¶ 10. Robin appealed the circuit court's decision. On appeal, Robin asserted that the parental preference established by Wis. Stat. § 880.09(2) required the circuit court to appoint a guardian if the court found James's parents "unsuitable and unwilling" to care for James. Robin further asserted that Lamanda was unsuitable. In contrast, Lamanda argued that the court must apply the higher standard of "unfitness" under Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).

¶ 11. The court of appeals affirmed the circuit court, concluding that in a guardianship proceeding between a nonparent and a parent, the parent must be proven "unfit" consistent with the standard set forth in Barstad. Robin K., 2004AP767, unpublished slip op., ¶¶ 1, 3-4. Robin seeks review, and we affirm.

l-H HH

¶ 12. This case presents mixed questions of fact and law, including questions of statutory interpretation. A circuit court's decision on whether to appoint a guardian involves a determination by the court based on the court's review of the facts of the case. See Anna S. v. Diana M., 2004 WI App 45, ¶ 7, 270 Wis. 2d 411, 678 N.W.2d 285. Such a determination is within the discretion of the circuit court judge. Id. We give deference to the circuit court's factual findings unless clearly erroneous. Howard M. v. Jean R., 196 Wis. 2d 16, 20, 539 N.W.2d 104 (Ct. App. 1995). Therefore, "[w]e affirm discretionary decisions if the circuit court applies the proper legal standard to the relevant facts and uses a rational process to reach a reasonable result." Anna S., 270 Wis. 2d 411, ¶ 7 (citing Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)). Although the circuit court's factual determinations and discretionary decisions are given deference, "[wjhether the circuit court applied the correct legal standard in exercising its discretion presents a question of law, which we review de novo." Id. (citing F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840 (Ct. App. 1999)).

¶ 13. We also review statutory interpretation de novo. State v. Reed, 2005 WI 53, ¶ 13, 280 Wis. 2d 68, 695 N.W.2d 315. The purpose of statutory interpretation is to give the statute its full, proper, and intended effect. Id. (citation omitted). "We begin with the statute's language because we assume that the legislature's intent is expressed in the words it used." Id. We refrain from interpreting statutory language in isolation and interpret the language in the context in which it is used to avoid absurd or unreasonable results. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning is plain from the language of the statute, we ordinarily stop the inquiry. Reed, 280 Wis. 2d 68, ¶ 13 (citation omitted).

I — I HH I — H

¶ 14. In this action, we are asked to determine the appropriate standard for a circuit court to use in deciding whether to appoint a nonparent as a guardian for a minor under chapter 880 when the minor's parent objects. The case requires us to review chapter 880 in general, focusing on the application of Wis. Stat. § 880.03 in particular.

¶ 15. Chapter 880 codifies certain guardianships for children in Wisconsin. Under chapter 880, when a court appoints a guardian for a minor, that guardian is entrusted with the "care, custody and control" of the minor. Prior to determining who should be appointed as a guardian, a court must first hold a hearing to determine if the child is "the proper subject for guardianship" and in need of a guardian. While all minors are potentially subject to guardianship, the relevant statute directs a court to appoint a guardian when there exist "extraordinary circumstances" requiring medical aid or the prevention of harm to the minor's person or property. Wis. Stat. § 880.03.

¶ 16. The legislature has not defined "extraordinary circumstances" under this section, and this court has not previously discussed what would constitute "extraordinary circumstances" under the guardianship statutes. In construing a statute, this court ascertains and gives effect to the legislative intent. State v. Petty, 201 Wis. 2d 337, 355, 548 N.W.2d 817 (1996). "In accord with the canons of statutory construction, [this court] give[s] words their ordinary and accepted meanings so as not to render any part of the statute superfluous." Id. at 356-57. This court often relies upon definitions of that word in a "recognized dictionary to determine the common and ordinary meaning of the word." Mared Industries, Inc. v. Mansfield, 2005 WI 5, ¶ 32, 277 Wis. 2d 350, 690 N.W.2d 835 (quoting State v. Polashek, 2002 WI 74, ¶ 19, 253 Wis. 2d 527, 646 N.W.2d 330). The applicable dictionary definition of "extraordinary" is "beyond what is ordinary or usual." American Heritage Dictionary 649 (3d ed. 1992). Black's Law Dictionary defines "extraordinary circumstances" as "[f]actors of time, place, etc., which are not usually associated with a particular thing or event; out of the ordinary factors." Black's Law Dictionary 586 (6th ed. 1990). We conclude that the statute is clear and unambiguous: the statute authorizes courts to appoint a guardian only in cases where circumstances out of the ordinary require medical aid, or in cases where circumstances out of the ordinary require the appointment of a guardian in order to prevent harm to the person or property.

¶ 17. In proceedings for the appointment of a guardian, the burden of proof by clear and convincing evidence rests upon the party seeking guardianship. See Colliton v. Colliton, 41 Wis. 2d 487, 491, 164 N.W.2d 480 (1969) (addressing the appointment of a guardian due to mental incompetency); Cheryl F. v. Sheboygan County, 170 Wis. 2d 420, 425, 489 N.W.2d 636 (Ct. App. 1992) (addressing the appointment of a guardian due to mental incompetency). We next examine whether Robin established, by clear and convincing evidence, the existence of extraordinary circumstances requiring medical aid or the prevention of harm, which would allow the court to appoint Robin as the guardian of James over the objections of James's mother.

¶ 18. We begin our analysis by observing that the record before us is incomplete. Full transcripts of the various hearings referenced in the parties' briefs were not made available. Our review is therefore limited to those parts of the record that are made available to us. Ryde v. Dane County, 76 Wis. 2d 558, 563, 251 N.W.2d 791, 793 (1977) (holding that the lack of a transcript "merely limits the review to those portions of the record that are available to the reviewing court"). Even when we examine a limited record, however, our standard of review does not permit us to second-guess the circuit court's factual findings. See Howard M., 196 Wis. 2d at 27.

¶ 19. In the present case, the circuit court found Lamanda's home "somewhat chaotic," and noted the existence of "some general allegations of neglect." However, the court concluded that there were no specific signs of neglect to any of Lamanda's children. The circuit court further found that because the Wisconsin Department of Human Services decided against removing Lamanda's other children, the department had tacitly approved that James's home placement was appropriate, subject to certain programming. Based on this finding, the court ruled that guardianship was inappropriate in this case.

¶ 20. Upon review of the record, we conclude that the circuit court's findings of fact are not clearly erroneous. We further conclude that Robin failed to establish by clear and convincing evidence that extraordinary circumstances exist requiring medical aid or the prevention of harm with respect to James. We agree with the circuit court that on the basis of this record, no need for a guardian has been shown.

¶ 21. In sum, we conclude that in evaluating a petition for a permanent guardianship on behalf of a minor filed by a nonparent when a parent objects, a court must first determine whether the party bringing the guardianship petition has shown that the child is in need of a guardian because there exist extraordinary circumstances requiring medical aid or the prevention of harm. Absent a showing of such extraordinary circumstances or need for a guardian, the court cannot appoint a guardian.

IV

¶ 22. We conclude that under chapter 880, a court is authorized to appoint a guardian for a minor when a parent objects when there exist extraordinary circumstances affecting the health or safety of the minor. We further conclude that the record in the present case does not support a finding of the requisite extraordinary circumstances or any need to appoint a guardian. Accordingly, we affirm the decision of the court of appeals on other grounds.

¶ 23. By the Court. — The decision of the court of appeals is affirmed.

DAVID T. PROSSER, J.

¶ 24. (concurring). While I concur in the result, I cannot join the majority opinion because I believe the standard it sets for granting a guardianship is not responsive to the complex realities that demand the appointment of a guardian. By adopting a one-size-fits-all standard that exceeds what is constitutionally required, the majority hamstrings the usefulness and flexibility of guardian-ships.

¶ 25. On November 5, 2003, Robin K. filed a petition for permanent guardianship of a minor, James D.K. Robin K. was the child's great aunt. She alleged that three-year-old James had spent most of the past two-and-one-half years living with her.

¶ 26. The following day, November 6, the child's mother, Lamanda M., asked a police officer to remove James from Robin K.'s home and return him to her.

¶ 27. On November 13, Robin K. filed an amended petition, seeking temporary guardianship of James. The amended petition was supported by a sworn affidavit alleging that for the past two-and-one-half years Robin K. had borne the primary responsibility for the care of James; during that time the child had been primarily placed with her by the mother, and Robin K. had provided for the child's care and welfare; Robin K. had taken the child to California during business trips "on numerous occasions;" the mother had "refused to financially support" the child "at any point in the child's life;" the child referred to his great aunt Robin K. as "Mommy;" and until the time the guardianship petition was filed, Lamanda M. had no objection to the placement of James with Robin K.

¶ 28. Robin K.'s affidavit also stated that she feared for the emotional and physical welfare of James when he was at his mother's house. On one occasion when he was with Lamanda M., the child was in an automobile accident that involved drinking; on another occasion, the child was in the car when the driver was arrested for operating under the influence of an intoxicant. Robin K. claimed that multiple people lived at the mother's residence and that James did not have his own bedroom.

¶ 29. In response to Robin K.'s petition, the court scheduled a hearing for November 20, 2003. Lamanda M. objected. In a November 18 letter to the court, she wrote:

I need to postphon my coort date on Nov. 20th 2003 for 2 resons. 11 jest found out yesterday and I haven't found a lawer for my case. 2.1 have to go out of state for a funrul. I have to leave tonight and I proble won't be back in til Saterday. I hope you will understand. I reall haven't found time to get council. Thanks for your time.

¶ 30. The court rescheduled the hearing, and it took evidence on December 3, 2003. Lamanda M. appeared at the December hearing without an attorney.

THE CIRCUIT COURT HEARING

¶ 31. This court is at a disadvantage because it does not have a transcript of the evidentiary portion of the circuit court hearing. We know, however, that the case came before the court as a petition for a temporary guardianship of the person of a minor under Wis. Stat. § 880.15 and that the court assumed the truth of Robin K.'s allegations about the child's placement, commenting that "the child's obviously spent a great deal of time with [Robin K] over the two and a half years," a "placement" that ended "when the guardianship [proceeding] was commenced."

¶ 32. There is a transcript of the court's ruling and the arguments that preceded the ruling. In the arguments, the guardian ad litem recommended the requested guardianship based upon (a) "concerns that I see with regard to the parenting that is being provided," (b) the abandonment standard having somewhat been met "by the mere fact that the child has not been in the care of the mother for most of the time," (c) the apparent lack of stability in the mother's life, (d) some of the decisions the mother "makes are not necessarily in the best interests" of her children, (e) the absence of stability in maintaining work or having a regular income, (f) concern about the stability of the mother's relationships with men ("four children, three born/one unborn. .. and all of them have different fathers"), (g) concerns leading to the intervention of the Sauk County Department of Human Services, and (h) "the wellbeing and best interests of the child."

¶ 33. Counsel for Robin K. made legal arguments about guardianship and how the mother could terminate the guardianship if the mother could show that she had become a "suitable" parent. "This guardianship is not something that goes on indefinitely," counsel argued. "I have been involved in guardianships that have terminated and I think that all [that] has to be shown is that it's in the child's best interests to be with the mother."

¶ 34. "[T]he most telling evidence against the mother in this case," counsel added, "is the fact that she has allowed [Robin K] to have this child[,] and the Court then has to ask itself why. And I think the answer is clear. Because she didn't feel she could care for the child."

¶ 35. Lamanda M. fired back:

I never thought that I couldn't take care of my son.. .. I still don't understand why they think I'm not capable of taking care of my son, or stable enough to take care of my son, when I've had my girls and I'm stable enough to take care of them. And I know that I'm young and I know that I have some money problems and some problems with having my friends come over. But... I think everybody once in their life goes through money situations when they lose their job or they can't find new employment.

¶ 36. In its ruling, the court stated that it had difficulty with the guardianship statute "in a situation such as this." The court indicated there were no limitations on commencing the action and no apparent way to end the guardianship. "[W]hat is the standard to be applied?" the court asked. The court then answered its own question: "[T]he guardianship does not have a standard." Although the court expressed concern "with the situation as it[']s been described to exist in [the mother's] home," the number of people there, the number of children, the "somewhat chaotic" atmosphere, and the general allegations of neglect, it concluded: "I don't believe that the guardianship is appropriate in this case." The court then dismissed the petition.

¶ 37. The issue presented on review is what standard the circuit court should employ in determining whether to grant a temporary guardianship of the person of a minor child when the guardianship is opposed by the child's mother.

DISCUSSION

¶ 38. Chapter 880 is entitled "Guardians and Wards." Wisconsin Stat. § 880.03 provides in part that "[a]ll minors, incompetents, and spendthrifts are subject to guardianship." There may be a guardian of the "person" or a guardian of the "estate," or both. § 880.03. In each case, the circuit court makes the appointment.

¶ 39. A "guardian" is defined, in part, in Wis. Stat. § 880.01(3) as "one appointed by a court to have care, custody and control of the person of a minor ... or the management of the estate of a minor . . . ." (Emphasis added.)

¶ 40. In this case, Robin K. is seeking a new legal status — guardian of the person of a minor child. That status would give her "custody" of the child. She is attempting to secure this legal status over the opposition of the mother. In these specific circumstances, the standard appears to be governed by Barstad v. Frazier, 118 Wis. 2d 549, 568-69, 348 N.W.2d 479 (1984):

We conclude that the rule to be followed in custody disputes between parents and third parties is that a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child. If the court finds such compelling reasons, it may award custody to a third party if the best interests of the children would be promoted thereby.

¶ 41. The court expanded its analysis in a footnote:

We are not... holding that parents may be deprived of custody of their children only if they are found to be unfit. ... A complete failure to assume any significant responsibility for the child... may well constitute compelling reasons warranting an award of custody to a non-parent.

Id. at 569 n.9 (emphasis added).

¶ 42. This court adhered to the Barstad standard as the proper standard when determining whether custody should be granted to a party who is not a minor's biological or adoptive parent. Holtzman v. Knott, 192 Wis. 2d 649, 664-65, 533 N.W.2d 419 (1995). See also Sporleder v. Hermes, 162 Wis. 2d 1002, 1009, 471 N.W.2d 202 (1991).

¶ 43. The standard set out in Barstad is a statement of "constitutional principles." Id. at 563. This means that when it applies, this standard prevails over any different statutory language. Nonetheless, the Barstad court tied the standard to the existing custody statute, Wis. Stat. § 767.24(l)(c) (1979-80):

If the interest of any child demands it, and if the court finds that neither party [parent] is able to care for the child adequately or that neither party [parent] is fit and proper to have the care and custody of the child, the court may declare any such child to be in need of protection or services and transfer legal custody of the child to a relative of the child ....

¶ 44. The substance of this quoted provision is now found in Wis. Stat. § 767.24(3)(a). Significantly, this same paragraph (a) also states: "If the court transfers legal custody of a child under this subsection [3], in its order the court shall notify the parents of any applicable grounds for termination of parental rights under s. 48.415."

¶ 45. If one were able to draw a clear distinction between the legal custody under presént § 767.24(3) and the guardianship custody implicated in § 880.03, then the Barstad standard might be relaxed. But the evidence here suggests that Robin K.'s ultimate goal was to obtain, through a permanent guardianship, the kind of legal custody, care, and control of the child contemplated in § 767.24(3). Absent a clear distinction between custody and guardianship, the court of appeals correctly applied the Barstad standard to this case. The court of appeals has also applied the Barstad standard in other guardianship cases, stating that the party petitioning for guardianship must first meet the Barstad standard — not the extraordinary circumstances standard — before a non-parent can be appointed guardian. See e.g., Elgin W. v. DHFS, 221 Wis. 2d 36, 42, 584 N.W.2d 195 (Ct. App. 1998); Howard M. v. Jean R., 196 Wis. 2d 16, 24, 539 N.W.2d 104 (Ct. App. 1995).

¶ 46. At the December 3, 2003, hearing, Robin K. sought a temporary guardianship. A temporary guardianship is described in Wis. Stat. § 880.15:

If, after consideration of a petition for temporary guardianship, the court finds that the welfare of a minor, spendthrift or an alleged incompetent requires the immediate appointment of a guardian of the person ... it may appoint a temporary guardian for a period not to exceed 60 days unless further extended for 60 days by order of the court. The court may extend the period only once. The authority of the temporary guardian shall be limited to the performance of duties respecting. . . the performance of particular acts, as stated in the order of appointment. All provisions of the statutes concerning the powers and duties of guardians shall apply to temporary guardians except as limited by the order of appointment.

¶ 47. Because the appointment of a temporary guardian is limited in time, the court may focus on the short-term welfare of the child in light of a parent's alleged inability to provide care or the presence of some immediate risk to the child as reflected in a need for protection or services. The statute appears to give the court power to set conditions in its order of appointment.

¶ 48. A temporary guardianship permits a troubled parent to stabilize her situation, addressing problems that might jeopardize her parental rights. A temporary guardianship permits the guardian or other person seeking a change of legal custody to determine whether to go forward, assuming the burden of proving parental "unfitness" or other grounds that will overcome parental opposition.

¶ 49. I part company with the majority opinion for three reasons.

¶ 50. First, the majority treats this case as a request for a permanent guardianship but declines to apply the Barstad standard. Majority op., ¶ 3 n.3. I disagree. The majority's standard, "extraordinary circumstances affecting the health or safety of the minor," is entirely consistent with the phrase in the Barstad standard: "extraordinary circumstances that would drastically affect the welfare of the child." Barstad, 118 Wis. 2d at 568.

¶ 51. Unless this court withdraws that language or successfully distinguishes the facts here from the facts in Barstad, the Barstad standard — which is not limited to "unfitness" — applies to a permanent, non-parental guardianship opposed by a mother.

¶ 52. Second, by turning to the language in § 880.03 for its "standard," the court is creating a quandary for future cases. The "extraordinary circumstances" language applies to all permanent guardian-ships. It applies to guardianships of the person for minors (regardless of whether a parent objects), spendthrifts, and incompetents, and it also applies to guard-ianships of their respective "estates."

¶ 53. Frankly, the standard applied in these cases cannot be the same in all situations. The standard has to vary when a parent is not involved, when a guardianship is not contested, and perhaps when there is a contested guardianship of the "estate" as opposed to a contested guardianship of the "person." To illustrate, if Robin K. had retained actual custody of James and if the mother did not oppose Robin K.'s guardianship of the child's person, the standard would have to be different from "extraordinary circumstances affecting the health or safety of the minor," because there would be, on such facts, no threat to the health or safety of James. It is not clear, under the majority's analysis, whether it would insist on applying the same standard on such facts, relying on § 880.03.

¶ 54. Third, I recognize that this court does not have the full record and that the circuit court did not find facts to grant the petition for a temporary guardianship. But I completely disagree that the court could not have granted a temporary guardianship if the facts alleged were established at the hearing. I believe it could have.

¶ 55. The Barstad court took pains to explain that the fundamental liberty interest of natural parents in the care, custody, and management of their own children does not evaporate simply because they have not been model parents. Barstad, 118 Wis. 2d at 562. On the other hand, the assertion of parental rights is to some extent dependent upon the assumption of parental responsibilities. "A biological parent who has never borne any significant responsibility for the child and who has not functioned as a member of the child's family unit is not entitled to the full constitutional protections." Id. at 563.

¶ 56. Lamanda M. asserted her parental rights but substantially abdicated her parental responsibilities. A young mother who willingly places her child in the care, de facto custody, and control of a relative for the better part of two-and-one-half years is either not responsible or, conversely, sufficiently responsible to realize that she cannot properly care for her child. It is not likely that her situation changed abruptly overnight.

¶ 57. In addition, at the time of the hearing, Lamanda M. was a mother who allegedly had four non-marital children by four different fathers, who had never provided financial support for James, who was unemployed, who had no stable source of income, who had a chaotic household, who had drug and alcohol problems, who had lost her driving privileges, who was (on the basis of her letter to the court) poorly educated, and who had a lengthy history of law enforcement contact and prosecution.

¶ 58. This court should not deprive circuit courts of the legal authority to grant guardianships, especially temporary guardianships, when facts of this gravity are established.

¶ 59. I concur in the result here, first, because I am not prepared to say that the findings of the circuit court are clearly erroneous, and, second, because two- and-one-half years have passed since December 3,2003, and we do not know how the situation has changed. However, I urge authorities in Sauk County to assure themselves that James is not a child in need of protection or services. Unlike many contemporary children, James has a good alternative, if an alternative is necessary.

       Robin is James's great aunt.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

       Although we affirm the court of appeals, we do so on other grounds.
      The court of appeals ruled that because Robin failed to assert that Lamanda was an unfit mother, Robin failed to meet the Barstad standard. Barstad v. Frazier, 118 Wis. 2d 549, 568, 348 N.W.2d 479 (1984).

        Barstad examined the constitutional implications of a custody dispute between a parent and a nonparent third party. Id. at 562. The court recognized "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child," id., and established criteria constitutionally required in custody disputes between parents and nonparents:
      [ A] parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party.

        Id. at 568.
      The present case involves the application of Wis. Stat. § 880.03 to a dispute over guardianship between a parent and a nonparent, which may present different concerns than other guardianships. See Howard M. v. Jean R., 196 Wis. 2d 16, 539 N.W.2d 104 (Ct. App. 1995). The statute grants courts the authority to appoint a guardian if there exist "extraordinary circumstances requiring medical aid or the prevention of harm to his or her person or property." Id.

      We note that there may be similarities between the statutory requirement that a court find "extraordinary circumstances requiring medical aid or the prevention of harm to his or her person," Wis. Stat. § 880.03, and the Barstad requirement that a court find "[c]ompelling reasons including] abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child," Barstad, 118 Wis. 2d at 568. Because we conclude that Robin has failed to meet the statutory requirements under Wis. Stat. § 880.03, we decline to reach the constitutional concerns raised in Barstad, or whether the statutory requirements concerning "extraordinary circumstances" are essentially the same as the constitutionally required "compelling reasons." We do not normally decide constitutional questions if the case can be resolved on other grounds. Labor & Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984).

       We note that in her November 5, 2003 petition, Robin asked the court to appoint her as James's permanent guardian. However, on November 13, 2003, Robin also filed a petition for temporary guardianship of James. Although the record fails to clarify the nature of the guardianship at issue in this case, we determine that the circuit court addressed Robin's request as a request for permanent guardianship. We draw this conclusion because the circuit court noted its concern that the guardianship statutes "have no seeming end;" yet, by law, a temporary guardianship can last no longer than 120 days. Wis. Stat. § 880.15.

       According to Robin's affidavit, upon filing for guardianship, James was removed from Robin's care.

       We presume for purposes of this appeal that James's father, William L. ('William"), did not oppose the petition. The sparse record indicates that William planned to nominate Robin K. as the guardian of James D. K. because he was "unable to perform the duties of a guardian at the present time." The record from the hearing includes only hand-written notes from the clerk and indicates that William testified over the phone. We have no additional information as to the content of William's testimony. The trial court record before this court bears no reference to William's decision not to oppose the petition.

       That section reads as follows:
      (2) PREFERENCE. If one or both of the parents of a minor, a developmentally disabled person or a person with other like incapacity are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects. The court shall appoint a corporate guardian under s. 880.35 only if no suitable individual guardian is available.
      Wis. Stat. § 880.09(2).

       In Barstad, this court concluded:
      the rule to be followed in custody disputes between parents and third parties is that a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party.

        Barstad, 118 Wis. 2d at 568.

       When a nonparent files a petition for guardianship over the objections of the child's parent, the nonparent is asking the court to grant the third party the right to make decisions regarding the "care, custody and control" of the child. Wis. Stat.§ 880.01(3). Because the appointment of a guardian for a minor over the objections of a parent gives major decision-making authority to a non-parent regarding how the child will be raised, decisions usually reserved for a child's parent(s), a guardianship appointment of a nonparent implicates the constitutionally protected rights of parents. Troxel v. Granville, 530 U.S. 57, 72-73 (2000) (concluding that due process prevents a state from infringing on the "fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made.") (citations omitted). Because we resolve this matter on statutory grounds in the parent's favor, we decline to reach the constitutional issues otherwise implicated here.

       Section 880.03 reads:
      Persons and estates subject to guardianship. All minors, incompetents and spendthrifts are subject to guardianship. The court may appoint a guardian of the person of anyone subject to guardianship who is also a resident of the county, or of a nonresident found in the comity, under extraordinary circumstances requiring medical aid or the prevention of harm to his or her person or property found in the county. The court may appoint a guardian of the estate of anyone subject to guardianship, whether a resident of the state or not, if any of the estate is located within the county. Separate guardians of the person and of the estate of a ward may be appointed.
      Wis. Stat. § 880.03.
      On May 10, 2006, the Wisconsin Legislature repealed Wis. Stat. § 880.03. 2005 Wis. Act. 387, § 307. This Act, among other things, creates chapter 54 to address the appointment of a guardian. 2005 Wis. Act. 387, § 100.
      Under the newly created chapter 54, "A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual if the court determines that the individual is a minor." Wis. Stat. § 54.10(1) (2005-06).

        See also Wis. Stat. §§ 48.831 and 48.977.

       Wis. Stat. § 880.01(3).

       Wisconsin Statute § 880.12 reads, in relevant part:
      Determination and order appointing guardian. (1) The court shall after hearing determine whether the person is a proper subject for guardianship. If the person is found to be in need of a guardian, the court shall appoint one or more guardians but not more than one guardian of the person shall be appointed unless they be husband and wife.

       The statute reads, in relevant part:

        The court may appoint a guardian of the person of anyone subject to guardianship who is also a resident of the county, or of a nonresident found in the county, under extraordinary circumstances requiring medical aid or the prevention of harm to his or her person or property ....
      Wis. Stat. § 880.03 (emphasis added).

       We note that the parties failed to explicitly address whether the present case is a proper situation to impose a guardianship and, instead, limited their briefs to an analysis of who the court should appoint as guardian. As discussed earlier, Robin asserted on appeal that the parental preference established by Wis. Stat. § 880.09(2) required the circuit court to appoint her as guardian if the court found James's parents "unsuitable and unwilling” to care for James. Lamanda responded that instead of applying the standard of "unsuitable and unwilling" the court must apply a higher standard of "unfitness" under Barstad. The parties' arguments are misdirected. Section 880.09(2) addresses whether a parent should be given, preference when the court is deciding who to appoint as a guardian. This section is inapplicable if the court does not first determine that there exist conditions for a guardianship in the first place.
      Although this court often requests briefs when an issue is raised sua sponte, this court has "decline[ed] to adopt a per se rule requiring courts to permit the submission of additional briefs whenever an issue is raised sua sponte." Bartus v. DHSS, 176 Wis. 2d 1063, 1073, 501 N.W.2d 419 (1993). In the present case, we find that additional briefing is unnecessary because the record and briefs contain adequate information to continue our analysis.

       As the majority indicates, 2005 Wisconsin Act 387 repeals and amends Chapter 880 of the Wisconsin Statutes. Majority op., ¶ 14 n.10. One such amendment is the repeal of the extraordinary circumstances standard. Since this standard will no longer apply, I urge the legislature to examine the standards it wishes to apply to guardianship cases when a parent is involved, as well as in other circumstances. The legislature is not free to disregard a constitutional standard for guardianship of a minor's person in cases involving the opposition of a parent. Additionally, I would encourage the legislature to examine the constitutionality of the "best interest of the minor" standard created by Act 387 in Wis. Stat. §§ 54.15(5) and 54.56(2) in light of Troxel v. Granville, 530 U.S. 57, 72-73 (2000).

       When determining guardianship, the circuit court must select one of five categories of residency under which the minor is classified. Despite this court's statutory interpretation of Wis. Stat. § 880.03, the Determination and Order for Guardianship of Minor form, created by the Judicial Conference Forms Committee, requires a showing of extraordinary circumstances only for a minor who is a nonresident of the county in which the petition for guardianship is filed. The form does not reference the standard for minors who are residents of the state and county, residents of the state and physically present in the county, nonresidents of the state whose person or property may be found in the county, or residents or nonresidents of the state with property located within the county. The forms committee would need to amend this form, in light of the majority opinion, so that it is consistent with the statutory interpretation that the extraordinary circumstances standard applies to all guardian-ships, except that 2005 Wis. Act 387 appears to leave the majority opinion without any prospective effect.

       Although the majority claims to limit its holding to the appointment of a guardian when a parent objects, there is no statutory basis for this limitation.


author: JON E WILCOX, J.

text:
    Russell S. Borst and Tina Borst, Plaintiffs-Appellants, v. Allstate Insurance Company, Defendant-Respondent.
    Supreme Court

      No. 2004AP2004.

      Oral argument April 6, 2006.

      Decided June 13, 2006.

    2006 WI 70
    (Also reported in 717 N.W.2d 42.)

      For the plaintiffs-appellants, there were briefs (in the Court of Appeals and Supreme Court) by John V. O'Connor and O'Connor, Dumez, Alia & McTernan, S.C., Kenosha, and oral argument by John V. O'Connor.

    For the defendant-respondent, there was a brief by John F. Fuchs, Catherine A. Goodman, and Fuchs, DeStefanis & Boyle, S.C., Milwaukee, and oral argument by John F. Fuchs and Catherine A. Goodman.

    An amicus curiae brief was filed by Mark A. Frankel and LaFollette Godfrey & Kahn, Madison; Kevin J. Lyons and Davis & Kuelthau SC, Milwaukee, on behalf of the Alternative Dispute Resolution Section of the State Bar of Wisconsin.
   JON E WILCOX, J.

¶ 1. This case comes to us on certification from the court of appeals. The appellants, Russell S. Borst and Tina Borst, appealed an order of the Circuit Court for Kenosha County, Michael S. Fisher, Judge, denying their motion to vacate an arbitration award.

¶ 2. The court of appeals certified the following questions: (1) Is there a presumption of impartiality among all arbitrators which may be "sidestepped" only by explicit agreement of all parties by which they may select arbitrators who in effect are their advocates? (2) Under Wis. Stat. § 788.10(l)(b) (2003-04), can "evident partiality," due to a relationship between an arbitrator and a party be avoided by full disclosure at the outset and a declaration of impartiality? (3) Other than the deposition procedure outlined in Wis. Stat. § 788.07, is the nature and extent of discovery during the arbitration process governed by contract, the arbitrators' inherent authority, or a combination of the two?

¶ 3. We hold the following: (1) We adopt a presumption of impartiality among all arbitrators, whether named by the parties or not. This presumption may be rebutted, and an arbitrator may act as a non-neutral when the parties contract for non-neutral arbitrators or the arbitration rules otherwise provide for non-neutral arbitrators; (2) Evident partiality cannot be avoided simply by a full disclosure and a declaration of impartiality. In challenges to an arbitrator based on evident partiality where the disputed relationship is fully disclosed, circuit courts must remove an arbitrator prior to the arbitration, or vacate an arbitration award under Wis. Stat. § 788.10(l)(b) when a reasonable person would have serious doubts about the impartiality of the arbitrator; and (3) Arbitrators have no inherent authority to dictate the scope of discovery, and absent an express agreement, the parties are limited to the procedure for depositions, as described in Wis. Stat. § 788.07.

¶ 4. Applying the above standard, we conclude that Arbitrator Rick Hills (Hills), who serves as Allstate's attorney on an ongoing basis, demonstrated evident partiality such that the arbitration award must be vacated; therefore, we reverse the order of the circuit court denying the motion to vacate and remand to the circuit court to vacate the arbitration award and order a new arbitration.

HH

¶ 5. Russell S. Borst (Borst) was involved in an automobile accident with an uninsured motorist on November 23, 2000. Borst was injured in the accident and received treatment. Subsequent to the accident, Borst sought reimbursement for his damages under his uninsured motorist coverage provided in an insurance policy issued by Allstate Insurance Company (Allstate).

¶ 6. In settlement discussions, Allstate stated that it believed Borst was 50 percent liable for the accident and thus would only be willing to pay 50 percent of the claim. Allstate also requested all medical records related to the claim be sent after Borst finished his treatment. A month later, Allstate again stated its position on liability remained unchanged after considering the statements from both drivers and the photographs of the vehicles and the intersection.

¶ 7. Borst subsequently provided his records, with the exception of two bills, which Borst indicated would be sent when they were received. In a letter dated February 6, 2002, Borst provided the missing bills, and documentation of Borst's wage loss. Furthermore, Borst indicated that if there was any additional information Allstate needed, it should advise as such. Eventually, Allstate made a settlement offer of $5,000.

¶ 8. In calculating the settlement offer, Allstate considered $4,331 in medical bills and $2,654 in lost wages, but indicated it thought Borst was 50 percent negligent for the accident. Borst rejected the settlement offer and requested arbitration in accordance with the insurance policy. The "If We Cannot Agree" provision of the policy reads in part as follows:

If the insured person or we don't agree on that person's right to receive any damages or the amount, then at the written request of either the disagreement will be settled by arbitration. Arbitration will take place under the rules of the American Arbitration Association unless either party objects.
If either party objects, the following method of arbitration will be used instead. The insured person will select one arbitrator. We will select another. The two arbitrators will select a third. If they cannot agree on a third arbitrator within 30 days, the judge of a court of record in the county of jurisdiction where arbitration is pending will appoint the third arbitrator. The written decision of any two arbitrators will determine the issues. The insured person will pay the arbitrator that person selects. We will pay the one we select. The expense of the third arbitrator and all other expenses of arbitration will be shared equally. However, attorney fees and fees paid to medical and other expert witnesses are not considered arbitration expenses. These costs will be paid by the party incurring them.

¶ 9. The parties elected to select arbitrators as provided for in the policy. Borst selected Eugene Gasi-orkiewicz as his arbitrator, and Allstate responded by naming Hills. Borst immediately objected to Hills as an arbitrator because Allstate was a client of Hills' law firm. Hills disputed Borst's contention that he could not be neutral, stating that "I can assure you that whenever I serve as an arbitrator I base my decisions on the evidence." Gasiorkiewicz and Hills then selected the third arbitrator.

¶ 10. Allstate subsequently served upon Borst a set of written interrogatories, a request for document production, and medical authorizations. In response, Borst filed a motion with the arbitration panel to quash this discovery as unnecessary. After substituting counsel, Allstate informed the arbitration panel it "wish[ed] to conduct the deposition of Mr. Borst and also obtain authorizations for release of records and without a formal order from the arbitration panel, that discovery may proceed." In support of its contention, Allstate emphasized the proof of claim provision of the insurance policy. Additionally, Allstate filed a motion with the panel requesting that Borst's claim be dismissed for failure to answer the discovery or, in the alternative, for an order requiring him to appear for a deposition and comply with other policy provisions. On August 22, 2002, the arbitration panel denied Allstate's motion to dismiss Borst's claim. Further, Borst was ordered to give a deposition, supply medical authorizations, and cooperate in other appropriate discovery.

¶ 11. Borst indicated that he would not submit to a deposition, and he intended to challenge in court the appropriate extent of discovery as well as whether an attorney can act as an arbitrator in a case that involves one of his firm's clients. Allstate responded by electing not to depose Borst, but it did not waive its right to the deposition. Instead, Allstate chose to depose the other driver involved in the accident. Borst, in turn, provided a fist of damages and confirmed the accuracy of all pre-arbitration discovery.

¶ 12. On December 5, 2002, Borst responded by filing suit against Allstate, alleging breach of contract, bad faith, and fraud and misrepresentation. Borst also sought a permanent injunction enjoining arbitration. Allstate filed an answer along with a number of motions. Borst responded with a motion to bar further arbitration as a prerequisite to suit. In this motion, Borst also requested that if the arbitration was allowed to proceed, the court order Allstate to select another arbitrator. In its brief in opposition to Borst's motion, Allstate represented that while it did not believe anything prevented it from selecting an arbitrator with whom it had an ongoing relationship, " [nevertheless, as discussed with Plaintiffs counsel in the past, in an effort to resolve this matter, Allstate is willing to choose a different arbitrator."

¶ 13. At the hearing on October 10, 2003, the circuit court remanded the matter back to the previous arbitration panel and held the other motions in abeyance pending the resolution of the arbitration.

¶ 14. When the matter of Hills'participation came up at the motion hearing, the court stated, "Allstate indicated they would be willing to consider someone else.. . . See if you can agree on an arbitrator. Give me a list. If you can't, give me a list of those people each of you would believe would be a good arbitrator." To this, Allstate's attorney replied, "We'll do it that way. I would just go on the record as saying I don't plan on naming somebody who also does a boat load of work for the client."

¶ 15. Borst's attorney drafted a proposed order stating that "Allstate Insurance Company shall designate a new arbitrator, to serve in place of Attorney Rick Hills." Allstate's attorney asked the court to refrain from signing the order until he had a chance to confirm with Allstate its authorization to substitute Hills. A few days later, Allstate submitted an order without the mandate that Allstate switch arbitrators, and the court signed this order on November 1, 2003.

¶ 16. The arbitration panel eventually rendered a unanimous decision in the matter concluding the total value of the claim was $3,531 and each driver was 50 percent responsible for causing the accident for a net award to Borst of $1,765.50.

¶ 17. Allstate filed a motion for court confirmation of the arbitration award under Wis. Stat. § 788.09, and Borst filed a motion for vacation of the award under Wis. Stat. § 788.10 on the grounds that Hills is a member of a law firm that represents Allstate on a continuing basis, which rendered Hills partial in the matter. At the hearing on the matter, the circuit court stated the following:

Well, the Court sees the problem; and had it been brought to my attention, I would have made other suggestions for arbitrators; but based upon what the law is, there are no rules, and least that I can see, that I have found, that there is a presumption of validity, that there was a three-arbitrator panel, that it was a unanimous decision.
There has been provided no substantial evidence that there was partiality; and based upon that and the fact there needs to be some rules set up so we know where we are going, the Court is going to deny the motion to vacate the arbitration award and see where it goes from here.

As such, the circuit court confirmed the arbitration award, denied Borst's motion to vacate, and dismissed the matter on the merits in an order filed on July 13, 2004.

¶ 18. Borst appealed, and the court of appeals subsequently certified the matter to this court.

HH hH

¶ 19. We first address whether there is a presumption of impartiality that may be avoided if the parties explicitly contract for non-neutral arbitrators or if applicable arbitration rules provide for non-neutral arbitrators. Although not important to the resolution of this case since the parties agree that the arbitrators were intended to be neutral, today we adopt such a presumption of impartiality.

¶ 20. As noted in the amicus brief submitted by the Alternative Dispute Resolution (ADR) Section of the Wisconsin State Bar (State Bar), the appropriate function for party-appointed arbitrators generates a great deal of confusion within the ADR community. Part of the confusion stems from the fact that courts have permitted the use of both neutral and non-neutral arbitrators in the arbitration process. See Seth H. Lieberman, Something's Rotten in the State of Party-Appointed Arbitration: Healing ADR's Black Eye That is "Nonneutral Neutrals," 5 Cardozo J. Conflict Resol. 215 (2004). Additionally, parties frequently do not designate whether the party-appointed arbitrators are supposed to be neutral or non-neutral. We believe confusion will be lessened, as the State Bar suggests, by prescribing presumptive impartiality as the appropriate role for the party-appointed arbitrator, unless the parties contract for non-neutral arbitrators or the arbitration rules otherwise provide for non-neutral arbitrators.

¶ 21. Furthermore, we believe such a presumption is in accordance with the language of Wis. Stat. § 788.10(l)(b), which discusses the vacation of an arbitration award "[w]here there was evident partiality or corruption on the part of the arbitrators, or either of them." (Emphasis added.) We interpret this language to mean that every arbitrator on the panel is supposed to be unbiased absent express contractual language or applicable arbitration rules to the contrary. Diversified Mgmt. Servs., Inc. v. Slotten, 119 Wis. 2d 441, 448, 351 N.W.2d 176 (Ct. App. 1984). In Diversified, the parties utilized a selection process of arbitrators similar to this case. On appeal, the parties differed on whether arbitrators chosen in this fashion were expected to be biased in favor of the choosing party. Id. at 447-48. The court rejected the supposed "modern view" that arbitrators selected by the parties are expected to be biased, and stated that "[i]f parties are to be encouraged to submit their disputes to arbitration as an alternative to litigation, they must be assured an impartial tribunal." Id. at 448. The court of appeals also pointed to the language of Wis. Stat. § 788.10(l)(b), which "provides that awards shall be vacated upon a showing of evident partiality on the part of either of the arbitrators. This language demonstrates that the legislature did not contemplate partisan arbitrators." Id. • (emphasis in original).

¶ 22. We note that our decision in Richco Structures v. Parkside Village, Inc., 82 Wis. 2d 547, 263 N.W.2d 204 (1978), seems to suggest the opposite result, but a closer inspection of the facts demonstrates that our decision today is in accord with Richco Structures. In that case, the parties each appointed an arbitrator and those two arbitrators selected, in the words of the stipulated terms of the arbitration agreement, "a third, independent arbitrator." Id. at 550. Further, if the three arbitrators could not agree on a decision, the independent arbitrator's decision would be accepted as final and binding. Id. In determining whether there was evident partiality under what was then Wis. Stat. § 298.10(l)(b) (1975-76), we concluded that under the stipulation, sole decision-making power was, in effect, granted to the third, independent arbitrator. Id. at 557. As such, "since two of the arbitrators in the case at bar were effectively, and by design, representatives of the respective parties, our construction of 'evident partiality' should only be read to apply to the arbitrator intended by the parties to be neutral." Id. The facts in Richco Structures make clear that the language of the stipulation demonstrated the parties' intent that only the arbitrator picked by the two party-appointed arbitrators was to be "independent," especially given the fact that the two party-appointed arbitrators did not have final decision-making authority. We do not take the language of Richco Structures to mean that in all tripartite arbitration panels, only the third arbitrator is subject to the impartiality requirement of § 788.10(l)(b), and therefore, Richco Structures is not contrary to our decision today that all arbitrators are presumed impartial.

¶ 23. The presumption we adopt today also puts Wisconsin in line with "the recent trend away from non-neutral party-appointed arbitrators and the heightened expectations of independence and neutrality of commercial arbitrators." Richard Chernick, Arbitrator-Neutrality Rule Reflects Change in Ethics, Daily Journal, Apr. 14, 2004, http://jamsadr.com/j_pub/ show_article_print.asp?id=81. For example, on March 1, 2004, the American Arbitration Association and an American Bar Association task force promulgated an updated version of the Code of Ethics for Arbitrators in Commercial Disputes. The most striking difference between the original 1977 version and the 2004 version is the application of a presumption of neutrality to all arbitrators, including party-appointed arbitrators. In the Introductory Note on Neutrality, the 2004 Code of Ethics reads in part:

The sponsors of this Code believe that it is preferable for all arbitrators including any party-appointed arbitrators to be neutral, that is, independent and impartial, and to comply with the same ethical standards.. .. This Code establishes a presumption of neutrality for all arbitrators, including party-appointed arbitrators, which applies unless the parties' agreement, the arbitration rules agreed to by the parties or applicable laws provide otherwise.

Chernick, supra. This presumption is then laid out in Canon IX of the 2004 Code of Ethics. Id. Arbitrators that are supposed to be predisposed to the position of the party appointing them are discussed in Canon X. Id.

¶ 24. As the State Bar recognizes, a presumption of impartiality will greatly reduce the amount of process-related disputes initiated by a party who concludes, either during or after the arbitration, that they had not known that partial arbitrators were permitted. Furthermore, a presumption of impartiality would force sophisticated commercial parties who affirmatively desire to use partial arbitrators to reach a clearer and more comprehensive set of ground rules before taking their dispute to an arbitration panel. For these reasons, we conclude that adopting a default presumption of impartiality is the prudent course of action.

¶ 25. For purposes of this decision, however, such a presumption is immaterial. That is, although the arbitration clause in the contract was silent as to the intent of the parties on the role of the arbitrators, at oral argument the parties agreed that their understanding of the arbitration provision in the insurance contract was that the entire panel was to be neutral. It is with this understanding in mind that the parties proceeded into arbitration and with which we review the circuit court's decision in this case.

( — H HH H-H

¶ 26. We now proceed to the next question certified by the court of appeals, which concerns the scope of Wis. Stat. § 788.10(l)(b), and whether evident partiality due to a relationship between an arbitrator and a party can be avoided by full disclosure at the outset and a declaration of impartiality. If so, the arbitration award need not be vacated, as Hills disclosed his relationship with Allstate. If evident partiality cannot be avoided simply by disclosure, we must determine whether the arbitration panel's award in this case must be vacated under § 788.10(l)(b).

¶ 27. Allstate argues that there is no law precluding an arbitrator from proceeding after he or she fully discloses a relationship with one of the parties. In fact, Allstate continues, under a literal reading of Wisconsin case law, there can be no evident partiality upon disclosure of a relationship. Thus, under Allstate's view, because Hills disclosed his relationship with Allstate at the outset, Hills properly sat on the arbitration panel.

¶ 28. In our view, Allstate's position is entirely unreasonable, especially considering the facts of this case. As noted above, the parties agree that the entire panel was to be neutral. Despite this understanding, Allstate still argues that disclosure is all that is necessary for a "neutral" arbitrator. Under Allstate's view then, Allstate's corporate counsel could serve as an arbitrator, as long as this relationship was disclosed. This example demonstrates the fallacy of Allstate's position.

¶ 29. The more difficult issue for us concerns what a party is entitled to when it objects to another party's arbitrator for reasons of partiality at the beginning of or during an arbitration. As the court of appeals put it, is disclosure all a party can expect until the award is made, at which time it can be challenged pursuant to Wis. Stat. § 788.10(1)(b)?

¶ 30. Admittedly, our case law is generally limited to post-award challenges addressing whether an arbitrator's failure to disclose a particular relationship to one of the parties constituted evident partiality. See DeBaker v. Shah, 194 Wis. 2d 104, 533 N.W.2d 464 (1995); Sch. Dist. of Spooner v. Nw. United Educators, 136 Wis. 2d 263, 401 N.W.2d 578 (1987), overruled by DeBaker, 194 Wis. 2d 104; Richco Structures, 82 Wis. 2d 547. However, other federal and state decisions provide some guidance.

¶ 31. There is authority for the view that an arbitrator cannot be removed before an award has been rendered. See e.g., Aviall, Inc. v. Ryder Sys., Inc., 110 F.3d 892, (2d Cir. 1997) (holding that the Federal Arbitration Act did not permit pre-award removal of an arbitrator considering that the plaintiff was aware of the arbitrator's relationship with the defendant when the arbitration agreement was reached); Astoria Med. Group v. Health Ins. Plan of Greater N.Y., 182 N.E.2d 85 (N.Y. 1962) (holding that it was improper for the court to tamper with the arbitration format designed by the parties and the appropriate approach was to attack the arbitration award after it had been rendered).

¶ 32. However, there is also authority for the opposite position. See, e.g., Arista Mktg. Assocs., Inc. v. Peer Group, Inc., 720 A.2d 659 (N.J. Super. Ct. App. Div. 1998); Excelsior 57th Corp. v. Kern, 630 N.Y.S.2d 492 (N.Y. App. Div. 1995) (dismissing a challenged arbitrator before an award was made because of his participation in a prior arbitration between the same parties). In Arista, the primary issue was whether the New Jersey statutes authorized the pre-arbitration removal of a party-appointed, non-neutral arbitrator where evident partiality was demonstrated. The Arista court held that under New Jersey law, judicial disqualification of an arbitrator demonstrating evident partiality was permitted whenever discovered. Id. at 664. Like Wisconsin, New Jersey has a pre-arbitration disclosure requirement which, in the Arista court's words," ’reduce[s] the likelihood of potentially wasteful post-arbitration challenges [,]' " id. at 665 (citation omitted), and "leave[s] to the parties themselves the initial decision as to whether to object to an arbitrator designated by the other side and, if necessary, to seek judicial determination of whether that arbitrator appears to be too partial to be permitted to participate in the arbitration." Id. (citation omitted).

¶ 33. Likewise, part of this court's reasoning in requiring pre-arbitration disclosure was to allow the parties and not the courts to gauge "the arbitrator's conscious or unconscious predilection to favor one of the parties because of the arbitrator's own interests." Richco Structures, 82 Wis. 2d at 560-61. This reasoning was also echoed by the concurring opinion in Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 151 (1968) (White, J., concurring) (reasoning that pre-arbitration disclosure is beneficial in arbitra-tions because with this information parties are "free to reject the arbitrator or accept him with knowledge of the relationship and continuing faith in his objectivity"). In Justice White's view, "[t]he arbitration process functions best when an amicable and trusting atmosphere is preserved and there is voluntary compliance with the decree, without need for judicial enforcement." Id.

¶ 34. We believe this case provides an example of a situation where a pre-arbitration challenge is necessary and efficient. Although Borst challenged Allstate's selection of Hills from the beginning, Allstate refused to select another arbitrator. It seems to us that in most instances, in the interest of fundamental fairness, a challenged arbitrator will simply be replaced by the opposing party, especially if on a reasonable basis, as in this case. Unfortunately, that did not happen here, and we conclude a pre-arbitration challenge is an appropriate remedy in situations such as this. Furthermore, for reasons we discuss below, the circuit court should have ordered Allstate to replace Hills upon Borst's pre-arbitration challenge.

¶ 35. In sum, we adopt the position taken by the Arista court. That is, unless the parties have contracted to use a specific arbitrator, pre-arbitration challenges to arbitrators selected by the parties are permissible. Such pre-arbitration challenges promote efficiency in the arbitration process when a party reasonably objects to the use of an arbitrator selected by the opposing party as Borst did of Hills in this case. We further believe pre-arbitration challenges are especially relevant in cases such as this where the parties agree that the arbitrators are to be neutral. In pre-arbitration challenges, a party may seek the removal of a challenged arbitrator under the general equity powers of the circuit court. Under this power of equity, the circuit court must order the party to select another arbitrator if the court determines the challenged arbitrator demonstrates "evident partiality" as that term is defined below.

¶ 36. We also reiterate that arbitrators should continue to disclose relevant relationships in accordance with our case law, see DeBaker, 194 Wis. 2d 104, and such disclosure puts the burden on the opposing party to object. A failure to initially object to the selection of an arbitrator, based on the information disclosed prior to the arbitration, may act as a forfeiture of any subsequent post-arbitration challenge on the disclosed information. See e.g., Kiernan v. Piper Jaffray Cos., 137 F.3d 588, 593 (8th Cir. 1998); Fort Hill Builders, Inc. v. Nat'l Grange Mut. Ins. Co., 866 F.2d 11, 13 (1st Cir. 1989). Post-arbitration challenges, of course, are permissible under Wis. Stat. § 788.10(1)(b) based on the circumstances of the arbitration itself or on information discovered post-arbitration.

¶ 37. Allstate contends that this case presents such an instance of forfeiture, in that Borst forfeited his right to make a post-arbitration challenge to Allstate's selection of Hills by failing to object to the November 1, 2003, order of the circuit court. Moreover, Allstate argues that because Borst did not sufficiently preserve this issue in the circuit court, he is not entitled to review of this issue as a matter of right. See State v. Huebner, 2000 WI 59, ¶ 11, 235 Wis. 2d 486, 611 N.W.2d 727.

¶ 38. From our review of the record, we conclude that Borst sufficiently pleaded and argued the issue of Hills' partiality to the circuit court, prior to the commencement of the arbitration, such that the issue was not forfeited. First, Borst objected to Allstate's choice of Hills almost immediately after Allstate selected him. Once the arbitration process came to a halt, Borst filed suit. In the complaint, Borst alleged that Allstate did not name an arbitrator who was "fair and unbiased" but instead named Hills, "an attorney whose firm had represented Allstate Insurance Company on numerous occasions, and was clearly biased towards them." Further, the complaint alleged that when Borst objected, Hills "refused to recuse himself and Allstate Insurance Company failed to appoint an unbiased arbitrator." These allegations formed the basis of Borst's cause of action for a permanent injunction.

¶ 39. Borst again raised the objection in a subsequent motion for an order barring further arbitration. In the motion, Borst requested that if his claim was ordered back into arbitration, Allstate should be required to name another arbitrator because of the attorney/client relationship between Hills and Allstate. In its response brief, Allstate represented that in an effort to resolve the matter, it would be willing to choose a different arbitrator. Then again, at the motion hearing, Allstate indicated it would be willing to consider another arbitrator who did not do a "boat load" of work for Allstate.

¶ 40. It is not clear from the record why the circuit court elected to sign Allstate's submitted order, which did not require Hills' removal, as opposed to Borst's, and admittedly, Borst would have been well-served by immediately moving for reconsideration of the order signed by the circuit court. However, Borst clearly objected to the use of Hills as an arbitrator on a number of occasions prior to the commencement of the arbitration. Furthermore, Allstate represented to Borst and the court that it would be willing to choose a different arbitrator, but never followed through with these assurances.

¶ 41. In sum, we believe Borst sufficiently preserved his right to challenge the appointment of Hills in both a post-arbitration motion with the circuit court under Wis. Stat. § 788.10(l)(b) and on appeal to this court. In other words, Borst did not forfeit any right to challenge Hills' appointment to the arbitration panel.

¶ 42. Having disposed of Allstate's forfeiture argument, we next turn to the issue of whether there was evident partiality on the part of Hills, such that the arbitration award must be vacated. In general, "[b]e-cause the policy of this state is to foster arbitration as an alternative to litigation, arbitration awards are presumed to be valid. An award will be set aside only upon a showing that one of the statutory grounds for vacatur exists." Richco Structures, 82 Wis. 2d at 553. "Essentially the court's role is supervisory in nature — to insure that the parties receive what they bargained for when they agreed to resolve certain disputes through final and binding arbitration." Madison Teachers, Inc. v. Madison Metro. Sch. Dist., 2004 WI App 54, ¶ 9, 271 Wis. 2d 697, 678 N.W.2d 311.

¶ 43. In this case, Borst argues that the award must be vacated under Wis. Stat. § 788.10(l)(b), which reads, in pertinent part, as follows: "[T]he court in and for the county wherein the award was made must make an order vacating the award upon the application of any party to the arbitration: ...(b) Where there was evident partiality or corruption on the part of the arbitrators, or either of them[.]" The circuit court must vacate an arbitration award if the proponent proves, by clear and convincing evidence, that there was evident partiality on the part of the arbitrator. DeBaker, 194 Wis. 2d at 117. Whether there is evident partiality on the part of the arbitrator is a question of law that we review de novo. Id. at 112.

¶ 44. We hold that there was evident partiality on the part of Hills, such that vacation of the arbitration award is mandated. That is, based on evidence that is clear, plain, and apparent, a reasonable person would have serious doubts about the impartiality of Hills, on a neutral arbitration panel. In this case, the fact that Hills had a substantial, ongoing attorney/client relationship with Allstate leads us to conclude, as a matter of law, that Hills demonstrated evident partiality such that the arbitration award must be vacated.

¶ 45. For our interpretation of the phrase evident partiality, we first turn to the United States Supreme Court's decision in Commonwealth Coatings, 393 U.S. 145, which addressed whether an arbitration award should be vacated on the grounds of evident partiality, albeit on the grounds of a failure of the arbitrator to disclose a relationship with a party. In that case, a plurality of the Court suggested that arbitrators are to meet the ethical standards of federal judges and the arbitrators "not only must be unbiased but also must avoid even the appearance of bias." Id. at 150.

¶ 46. However, Justice White wrote a concurrence, in which he made it clear that the Court did not decide that arbitrators should be held to the standard of judges. Id. (White, J., concurring). Furthermore, the concurrence concluded that arbitrators should not automatically be disqualified by a business relationship with a party as long as there is mandatory disclosure of relationships "where the arbitrator has a substantial interest in a firm which has done more than trivial business with a party[,]" id. at 151-52 (emphasis added), as the parties are then "free to reject the arbitrator or accept him with knowledge of the relationship and continuing faith in his objectivity." Id. at 151.

¶ 47. Although we have not officially adopted Justice White's concurrence as authoritative, we have noted the federal courts of appeals apparent preference for its reasoning. DeBaker, 194 Wis. 2d at 113 n.4. In DeBaker, we analyzed whether an arbitrator demonstrated evident partiality because he did not disclose that he received campaign contributions from members of the law firm representing one of the parties. Id. at 108. We concluded that the arbitrator did not demonstrate evident partiality within the meaning of § 788.10(1)(b) using the following standard:

"[ E]vident partiality" exists only when a reasonable person knowing the previously undisclosed information would have had "such doubts" regarding the impartiality of the arbitrator that the person would have taken action on the information. "In other words, a reasonable person would conclude it 'evident,' that is clear, plain, and apparent from the undisclosed information, that partiality is so likely that action was required." Put another way, the standard is not simply that a reasonable person, upon learning of the undisclosed information, would investigate further. The standard is whether the reasonable person, after further investigation, would conclude that "partiality is so likely that action was required."

Id. at 116-17 (emphasis in original) (internal citation omitted). We noted that this standard was in accord with the federal courts' construction of the phrase evident partiality. Id. at 117 n.5 (citing Morelite Const. Corp. v. N.Y. City Dist. Council Carpenters Benefit Funds, 748 F.2d 79, 84 (2d Cir. 1984) ("[W]e hold that 'evident partiality' within the meaning of 9 U.S.C. § 10 will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration."); Toyota of Berkeley v. Auto. Salesman's Union, Local 1095, United Food and Commercial Workers Union, 834 F.2d 751, 756 (9th Cir. 1987) (to show evident partiality on part of arbitrator party alleging bias must demonstrate facts that create a "reasonable impression of partiality"); Dowd v. First Omaha Sec. Corp., 495 N.W.2d 36, 43 (Neb. 1993) (adopting Morelite Const, test as appropriate for considering whether arbitrator was evidently partial under federal law)).

¶ 48. In DeBaker, we essentially restated the test enunciated in Richco Structures, 82 Wis. 2d 547. The holding of that case principally dealt with the adoption of a requirement for full disclosure at the outset of arbitration. However, in adopting such a rule, the court stated as a rationale that it would help eliminate litigation where the courts would have to determine the fine line between whether "the relationships were casual, innocent, superficial, isolated, insignificant or inconsequential... or whether the relationships were substantial." Id. at 560. Thus, this language suggests a substantial relationship between an arbitrator and a party is indicative of evident partiality on the part of the arbitrator. See also Commonwealth Coatings, 393 U.S. at 151-52 (White, J., concurring).

¶ 49. In conformity with the language from our previous decisions in DeBaker and Richco Structures, and in the interest of fostering neutral arbitration panels, we adopt a similar standard for cases such as this where the disputed relationship was disclosed prior to the arbitration. That is, the circuit court must vacate an arbitration award under Wis. Stat. § 788.10(l)(b) due to evident partiality if based on evidence that is clear, plain, and apparent, a reasonable person would have serious doubts about the impartiality of the arbitrator.

¶ 50. We first acknowledge that this standard must be taken with the perspective that in most instances, party-appointed arbitrators are paid by the party who selects the arbitrator. Indeed, in this case, the arbitration provision in the insurance contract provides as such. However, this is a typical aspect of arbitration.

¶ 51. Furthermore, in adopting this standard we acknowledge that arbitrators with experience in particular fields can be effective in arbitrations. That is, Allstate is well within its right to appoint an arbitrator with a prominent background in insurance defense. Indeed, such an arbitrator may have had indirect dealings with Allstate in the insurance industry. However, in this case, there is a direct, substantial relationship between Hills and Allstate. In other words, Hills has represented Allstate in a number of lawsuits and apparently will continue to represent Allstate in the future.

¶ 52. In sum, we conclude that the ongoing attorney/client relationship between Allstate and Hills is of such a substantial nature that a reasonable person would have serious doubts about the partiality of Hills. Therefore, as a matter of law, Hills was evidently partial under Wis. Stat. § 788.10(l)(b), and the arbitration award must be vacated.

IV

¶ 53. Finally, we address the third certified issue concerning the nature and extent of discovery permitted during an arbitration process, absent any express contractual provisions that detail the parties' intent. Again, in this case, the arbitration provision of the contract is silent as to the terms of discovery, along with many other conditions of the arbitration.

¶ 54. Borst essentially contends that discovery in arbitration is the exception and not the rule. Borst argues that in an arbitration of a first party insurance claim, and absent extraordinary circumstances, the parties should simply submit their cases to the arbitrators. Unfettered discovery, Borst argues, defeats the general purposes of arbitration to be faster, less formal, and less expensive. See Employers Ins. of Wausau v. Jackson, 190 Wis. 2d 597, 610-11, 527 N.W.2d 681 (1995). In support of this argument, Borst points to the Wisconsin Arbitration Act, ch. 788, which makes no provisions for discovery apart from court-ordered depositions. Wis. Stat. § 788.07. Furthermore, in this particular case, Borst maintains that there was no real need for discovery, given that there was no claim of permanent injury, the medical records and bills had been supplied, and Allstate claimed to have fully assessed liability before it made its offer.

¶ 55. For its part, Allstate submits that because the legislature allowed for the taking of depositions during arbitration, then it surely would allow for other less costly forms of discovery. The legislature, Allstate argues, left the extent of discovery to the discretion of the arbitrators. Allstate further contends that the arbitrators will be most familiar with the facts of the case and the need for appropriate discovery, and therefore should be left with this discretion.

¶ 56. We conclude that arbitrators have no inherent authority to dictate the scope of discovery, and absent an express agreement to the contrary, the parties are limited to depositions as spelled out in Chapter 788. We agree with the State Bar in that parties would be well-served to either: (1) explicitly address the scope of discovery and the procedures to resolve disputes regarding discovery; or (2) reference a set of established ADR provider rules that specify how discovery should be handled.

¶ 57. In our view, arbitrators do not have the inherent authority to determine the necessity and scope of discovery allowed because, quite simply, there is no statutory authority providing for discovery outside of the procedures for depositions enumerated in Wis. Stat. § 788.07.

¶ 58. Essentially, the main Wisconsin law we have to guide us on this issue is the language of Wis. Stat. § 788.07 itself:

Depositions. Upon petition, approved by the arbitrators or by a majority of them, any court of record in and for the county in which such arbitrators, or a majority of them, are sitting may direct the taking of depositions to be used as evidence before the arbitrators, in the same manner and for the same reasons as provided by law for the taking of depositions in suits or proceedings pending in the courts of record in this state.

This section does not speak to, for example, interrogatories, requests for production, or medical authorizations. Indeed, even looking beyond this particular section, the Wisconsin Arbitration Act does not speak to any other form of discovery. To allow for the amount of discovery Allstate seeks, we would have to read more into § 788.07 than is present in the statutory language. Such a decision would violate our well-settled canon of statutory interpretation that if the language is plain, we ordinarily stop the inquiry. State ex rel. Kalal v. Cir. Ct. for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 59. Importantly, arbitration is a matter of contract. See Jay E. Grenig & Nathan A. Fishbach, Methods of Practice, 2A Wisconsin Practice Series § 86.40 at 272 (4th ed. 2004). Therefore, the amount of authority vested in the appointed arbitrators and the specifics of the arbitration process are, in turn, governed by the contract. Indeed, parties can contract to allow arbitrators a wide amount of latitude in managing the arbitration, subject to the constraints of the law. See Employers Ins. of Wausau v. Certain Underwriters at Lloyd's London, 202 Wis. 2d 673, 552 N.W.2d 420 (Ct. App. 1996). Simply put, without a contractual provision granting some form of authority on the arbitrator, there is no "inherent authority" under Wisconsin law that an arbitrator can fall back on. Thus, absent a contractual provision specifying how discovery will be handled, the parties are limited to the discovery procedures provided in the statutes.

¶ 60. A grant of such "inherent authority" in arbitrators by this court would give us pause as we do not want to turn the arbitration process into another trial system. We believe the better approach is to leave it to the parties, in the future, to ensure arbitration agreements are clearly drafted, and detail the necessary components and procedures of the desired arbitration.

¶ 61. Additionally, the goal of arbitration is "to resolve the entire controversy out of court without the formality and expense that normally attaches to the judicial process." Grenig & Fishbach, supra, § 86.40 at 272 (emphasis added). We believe unfettered discovery, as the arbitration panel granted to the parties here, is contrary to the goals of arbitration, especially when considered with the relatively small amount of the underlying claim and the amount of information Allstate already had at its disposal prior to the arbitration.

¶ 62. In this case, there were no set provisions in the insurance contract that detailed the terms of the discovery in the arbitration. Therefore, if the parties decide to conduct another arbitration, discoveiy will be limited to depositions as detailed in Wis. Stat. § 788.07.

V

¶ 63. In sum, we hold the following: (1) We adopt a presumption of impartiality among all arbitrators, whether named by the parties or not. This presumption may be rebutted and an arbitrator may act as a non-neutral when the parties contract for non-neutral arbitrators or the arbitration rules otherwise provide for non-neutral arbitrators; (2) Evident partiality cannot be avoided simply by a full disclosure and a declaration of impartiality. In challenges to an arbitrator based on evident partiality where the disputed relationship is fully disclosed, circuit courts must remove an arbitrator prior to the arbitration, or vacate an arbitration award under Wis. Stat. § 788.10(l)(b) when a reasonable person would have serious doubts about the impartiality of the arbitrator; and (3) Arbitrators have no inherent authority to dictate the scope of discovery and absent an express agreement, the parties are limited to the procedure for depositions, as described in Wis. Stat. § 788.07.

¶ 64. Applying the above standard, we conclude that Arbitrator Hills, who serves as Allstate's attorney on an ongoing basis, demonstrated evident partiality such that the arbitration award must be vacated; therefore, we reverse the order of the circuit court denying the motion to vacate and remand to the circuit court to vacate the arbitration award and order a new arbitration.

By the Court. — The order of the circuit court is reversed, and the cause is remanded.

       All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

       This provision of the policy reads as follows:
      PROOF OF CLAIM; MEDICAL REPORTS
      As soon as possible, you or any other person making claim must give us written proof of claim. It must include all details we need to determine the amounts payable. We may also require any person making claim to submit to questioning under oath and sign the transcript. The insured person may be required to take medical examinations by physicians we choose, as often as we reasonably require. We must be given authorization to obtain medical reports and copies of records.

       Borst actually filed suit with his wife, Tina Borst. For simplicity, we will continue to refer to the Borsts collectively as simply "Borst."

       Wisconsin Stat. § 788.10 is nearly identical to 9 U.S.C. § 10 (2000). Federal cases construing the Federal Arbitration Act are persuasive authority in interpreting § 788.10. Diversified Mgmt. Servs., Inc. v. Slotten, 119 Wis. 2d 441, 446, 351 N.W.2d 176 (Ct. App. 1984).

       New Jersey Stat. Ann. § 2A:24-8(b) (2003-04) provides that a court shall vacate arbitration awards "(w)here there was either evident partiality or corruption in the arbitrators, or any thereof."

        See WJ. Dunn, Disqualification of Arbitrator by Court or Stay of Arbitration Proceedings Prior to Award, on Ground of Interest, Bias, Prejudice, Collusion, or Fraud of Arbitrators, 65 A.L.R. 2d 755 § 2(c) (1959) (citing e.g., Gaer Bros., Inc. v. Mott, 130 A.2d 804 (Conn. 1957); Palmer Plastics, Inc. v. Rubin, 108 N.Y.S. 2d 514 (N.Y. Sup. Ct. 1951)).

       In some cases, the significance of the information disclosed prior to the arbitration will not be apparent until after the arbitration commences. In such an appropriate instance, a subsequent challenge to the arbitrator based on the pre-arbitration information is permissible.

       Although Allstate argues that Borst "waived" his right to object to Allstate's selection of Hills, we believe this is really more an issue of forfeiture "because it refers to the forfeiture of a right by silence rather than the intentional relinquishment of a known right." State v. Huebner, 2000 WI 59, ¶ 11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727 (citations omitted).

       Some jurisdictions have determined that discovery during arbitration is at the discretion of the arbitrator. See e.g., Rintin Corp., S.A. v. Domar, Ltd., 374 F. Supp. 2d 1165, 1170 (S.D. Fla. 2005); McCrary ex rel. McCrary v. Byrd, 559 S.E.2d 821, 826 (N.C. Ct. App. 2002). However, there is authority for the opposite conclusion. That is, when parties submit their disputes to arbitration, "they relinquish the right to certain procedural niceties which are normally associated with a formal trial. One of these accoutrements is the right to pre-trial discovery." Burton v. Bush, 614 F.2d 389, 390 (4th Cir. 1980).

       Allstate maintains in its brief that the rules of the American Arbitration Association (AAA) apply to this case. This contention is problematic for two reasons. First, it is unclear which set of arbitration rules promulgated by the AAA would be applicable. Second, at oral argument, counsel for Allstate conceded that, as provided for in the contract, the parties went a "different route" for the arbitration than that provided by the AAA by choosing their own arbitrators. As such, we conclude that no rules of the AAA are binding on our decision.