788.03 Annotation
This section is only available when an underlying lawsuit has not yet been filed. When a lawsuit has been commenced, a party may not use the special procedure outlined in this section to compel arbitration. The party may still seek an order to arbitrate, but it must do so in the court where the underlying lawsuit is pending, not by initiating a separate action. The Payday Loan Store of Wisconsin Inc. v. Krueger,
2013 WI App 25,
346 Wis. 2d 237,
828 N.W.2d 587,
12-0751.
788.03 Annotation
Timeliness and estoppel defenses against arbitration are to be determined in the arbitration proceedings, not by a court in a proceeding under this section to compel arbitration. This conclusion in this case was based on Wisconsin's public policy favoring arbitration, the arbitration agreement in this case, the Realtors Association's arbitration procedures, the limited role of courts in actions to compel arbitration under this section, and relevant case law. First Weber Group, Inc. v. Synergy Real Estate Group, LLC,
2015 WI 34,
361 Wis. 2d 496,
860 N.W.2d 498,
13-1205.
788.03 Annotation
The legislature has determined that the courts have a limited role in the context of arbitration. In an action to compel arbitration under this section, the issues are limited to the making of the arbitration agreement or the failure, neglect, or refusal to perform under the agreement. When determining whether a dispute is arbitrable, a court's function is limited to a determination of whether there is a construction of the arbitration clause that would cover the grievance on its face and whether any other provision of the contract specifically excludes it. First Weber Group, Inc. v. Synergy Real Estate Group, LLC,
2015 WI 34,
361 Wis. 2d 496,
860 N.W.2d 498,
13-1205.
788.03 Annotation
The procedure under s. 788.02 is somewhat truncated in comparison to this section, but the circuit court's responsibility is essentially the same. Both this section and s. 788.02 require the circuit court to do nothing more than determine whether the parties must arbitrate their dispute and then ensure that they do. L.G. v. Aurora Residential Alternatives, Inc.,
2019 WI 79,
387 Wis. 2d 724,
929 N.W.2d 590,
18-0656.
788.04
788.04
Arbitrators, how chosen. 788.04(1)(1)
If, in the agreement, provision is made for a method of naming or appointing an arbitrator or arbitrators or an umpire that method shall be followed. If no method is provided in the agreement, or if a method is provided and any party thereto fails to make use of the method, or if for any other reason there is a lapse in the naming of an arbitrator or arbitrators or an umpire, or in filling a vacancy, then upon the application of either party to the controversy, the court specified in s.
788.02 or the circuit court for the county in which the arbitration is to be held shall designate and appoint an arbitrator, arbitrators or umpire, as the case or sub.
(2) may require, who shall act under the agreement with the same force and effect as if specifically named in the agreement; and, except as provided in sub.
(2) or unless otherwise provided in the agreement, the arbitration shall be by a single arbitrator.
788.04(2)
(2) A panel of arbitrators, consisting of 3 persons shall be appointed to arbitrate actions to recover damages for injuries to the person arising from any treatment or operation performed by or any omission by any person who is required to be licensed, registered or certified to treat the sick as defined in s.
448.01 (10).
788.04(2)(a)
(a) One arbitrator shall be appointed by the court from a list of attorneys with trial experience. The list shall be prepared and periodically revised by the State Bar of Wisconsin.
788.04(2)(b)
(b) One arbitrator shall be appointed by the court from lists of health professionals prepared and periodically revised by the appropriate statewide organizations of health professionals. The lists shall designate the specialty, if any, of each health professional listed. The organizations of health professionals shall assist the court to determine the appropriate specialty of the arbitrator for each action to be arbitrated.
788.04(2)(c)
(c) One arbitrator who is not an attorney or a health professional shall be appointed by the court.
788.04(2)(d)
(d) Any person appointed to the arbitration panel may disqualify himself or herself or be disqualified by the court if any reason exists which requires disqualification. A substitute member of the arbitration panel shall be chosen in the same manner as the person disqualified was chosen.
788.04(2)(e)
(e) No member of the panel may participate in any subsequent court proceeding on the action arbitrated as either a counsel or a witness unless the court deems the member's testimony necessary for hearings under s.
788.10 or
788.11.
788.05
788.05
Court procedure. Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.
788.05 History
History: 1979 c. 32 s.
64; Stats. 1979 s. 788.05.
788.06
788.06
Hearings before arbitrators; procedure. 788.06(1)(1)
When more than one arbitrator is agreed to, all of the arbitrators shall hear the case unless all parties agree in writing to proceed with a lesser number.
788.06(2)
(2) Any arbitrator may issue a subpoena under ch.
885 or may furnish blank forms therefor to a representative for any party to the arbitration. The representative may issue a subpoena under s.
805.07. The arbitrator or representative who issues the subpoena shall sign the subpoena and provide that the subpoena is served as prescribed in s.
805.07 (5). If any person so served neglects or refuses to obey the subpoena, the issuing party may petition the circuit court for the county in which the hearing is held to impose a remedial sanction under ch.
785 in the same manner provided for witnesses in circuit court. Witnesses and interpreters attending before an arbitration shall receive fees as prescribed in s.
814.67.
788.06 History
History: 1985 a. 168.
788.07
788.07
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.
788.07 History
History: 1979 c. 32 s.
64; Stats. 1979 s. 788.07.
788.07 Annotation
Arbitrators have no inherent authority to dictate the scope of discovery. Absent an express agreement, the parties are limited to the procedure for depositions, as described in this section. Borst v. Allstate Insurance Co.,
2006 WI 70,
291 Wis. 2d 361,
717 N.W.2d 42,
04-2004.
788.07 Annotation
For a party in arbitration to enjoy discovery outside of that allowed by this section, an insurance policy must provide for it expressly, explicitly, specifically, and in a clearly drafted clause. For a policy to adequately describe the discovery mechanisms to be used at arbitration it must indicate in the policy that the mechanisms are in fact discovery mechanisms and that they are meant to be available at arbitration. A provision stating that “local rules of law as to procedure and evidence will apply" was not an explicit, specific, and clearly drafted reference to ch. 804 or to any other discovery rules. Marlowe v. IDS Property Casualty Insurance Co.,
2013 WI 29,
346 Wis. 2d 450,
828 N.W.2d 812,
11-2067.
788.07 Annotation
Borst Clarifies Arbitration Procedures. Frankel. Wis. Law. Dec. 2006.
788.08
788.08
Written awards. The award must be in writing and must be signed by the arbitrators or by a majority of them.
788.08 History
History: 1979 c. 32 s.
64; Stats. 1979 s. 788.08.
788.09
788.09
Court confirmation award, time limit. At any time within one year after the award is made any party to the arbitration may apply to the court in and for the county within which such award was made for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified or corrected under s.
788.10 or
788.11. Notice in writing of the application shall be served upon the adverse party or the adverse party's attorney 5 days before the hearing thereof.
788.09 History
History: 1979 c. 32 s.
64; Stats. 1979 s. 788.09;
1981 c. 390;
1993 a. 486.
788.09 Annotation
The time limit under s. 788.13 does not apply when the prevailing party moves to confirm under s. 788.09 and the adverse party wishes to raise objections under ss. 788.10 and 788.11. Milwaukee Police Association v. Milwaukee,
92 Wis. 2d 145,
285 N.W.2d 119 (1979).
788.10
788.10
Vacation of award, rehearing by arbitrators. 788.10(1)(1)
In either of the following cases the 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:
788.10(1)(a)
(a) Where the award was procured by corruption, fraud or undue means;
788.10(1)(b)
(b) Where there was evident partiality or corruption on the part of the arbitrators, or either of them;
788.10(1)(c)
(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced;
788.10(1)(d)
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
788.10(2)
(2) Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.
788.10 History
History: 1979 c. 32 s.
64; Stats. 1979 s. 788.10.
788.10 Annotation
A court may order arbitrators to hear further testimony without establishing a new panel. Gallagher v. Schernecker,
60 Wis. 2d 143,
208 N.W.2d 437 (1973).
788.10 Annotation
The interjection of a new contract time period in an amended final offer after the petition is filed presents a question beyond the statutory jurisdiction of the arbitrators. Milwaukee Deputy Sheriffs' Association v. Milwaukee County,
64 Wis. 2d 651,
221 N.W.2d 673 (1974).
788.10 Annotation
Arbitration awards are presumptively valid, and an award may not be attacked on the grounds that a portion of it could conceivably be allocable to an allegedly improper item. Scherrer Construction Co. v. Burlington Mem. Hosp.
64 Wis. 2d 720,
221 N.W.2d 855 (1974).
788.10 Annotation
Contacts between the arbitrator and one party outside the presence of the other do not in themselves justify vacating an award to the party involved if the challenger does not demonstrate either improper intent or influence by clear and convincing evidence. Manitowoc v. Manitowoc Police Department,
70 Wis. 2d 1006,
236 N.W.2d 231 (1975).
788.10 Annotation
An arbitrator exceeded his authority under sub. (1) (d) in determining that the discharge of a city employee for a violation of an ordinance residency requirement was not for just cause within the meaning of the collective bargaining agreement. WERC v. Teamsters Local No. 563,
75 Wis. 2d 602,
250 N.W.2d 696 (1977).
788.10 Annotation
An arbitrator did not exceed his powers by adopting a ministerial-substantive distinction in determining the scope of the unfettered management function provided by agreement. The arbitrator did exceed his powers by ordering maintenance of past practice without finding that the agreement required such action. Milwaukee Professional Fire Fighters Local 215 v. Milwaukee,
78 Wis. 2d 1,
253 N.W.2d 481 (1977).
788.10 Annotation
Arbitrators did not exceed their authority by arbitrating a grievance under a “discharge and nonrenewal" clause of a collective bargaining agreement when the contract offered by the board was signed by a teacher after deleting the title “probationary contract" and the board did not accept this counteroffer or offer the teacher a second contract. Joint School District No. 10 v. Jefferson Education Association,
78 Wis. 2d 94,
253 N.W.2d 536 (1977).
788.10 Annotation
Although the report of an arbitrator did not explicitly mention a counterclaim, the trial court did not err in determining that the denial of the counterclaim was implicit in the report. The failure of the arbitrator to set forth theories or support finding is not grounds for objection to the arbitrator's award. McKenzie v. Warmka,
81 Wis. 2d 591,
260 N.W.2d 752 (1978).
788.10 Annotation
The disclosure requirements for neutral arbitrators regarding the vacation of an award under sub. (1) (b) are discussed. Richco Structures v. Parkside Village, Inc.,
82 Wis. 2d 547,
263 N.W.2d 204 (1978).
788.10 Annotation
Courts should apply one standard of review of arbitration awards under municipal collective bargaining agreements. Madison Metropolitan School District v. WERC,
86 Wis. 2d 249,
272 N.W.2d 314 (Ct. App. 1978).
788.10 Annotation
The time limit under s. 788.13 does not apply when the prevailing party moves to confirm under s. 788.09 and an adverse party wishes to raise objections under ss. 788.10 and 788.11. Milwaukee Police Association v. Milwaukee,
92 Wis. 2d 145,
285 N.W.2d 119 (1979).
788.10 Annotation
An arbitrator appointed under a specific contract had no power to make awards under successor contracts not in existence at the time the grievance was submitted. Milwaukee Board of School Directors v. Milwaukee Teachers' Education Ass'n,
93 Wis. 2d 415,
287 N.W.2d 131 (1980).
788.10 Annotation
An arbitrator exceeded his authority by directing that the grievant be transferred when the contract reserved transfer authority to the city and chief of police. Milwaukee v. Milwaukee Police Ass'n,
97 Wis. 2d 15,
292 N.W.2d 841 (1980).
788.10 Annotation
Although a contract gave management the right to determine job description classifications, the arbitrator did not exceed his authority by overruling management's determination that an employee with 8 years of job experience was not qualified for promotion to a job requiring two years of college “or its equivalent as determined by management." Oshkosh v. Union Local 796-A,
99 Wis. 2d 95,
299 N.W.2d 210 (1980).
788.10 Annotation
The burden of proving “evident partiality" of an arbitrator was not met when the apparently biased remarks of the arbitrator represented merely an initial impression, not a final conclusion. Diversified Management Services v. Slotten,
119 Wis. 2d 441,
351 N.W.2d 176 (Ct. App. 1984).
788.10 Annotation
An award was vacated for “evident partiality" because the arbitrator failed to disclose past employment with the entity supplying a party's counsel. Spooner Dist. v. N.W. Educators,
136 Wis. 2d 263,
401 N.W.2d 578 (1987).
788.10 Annotation
A party cannot complain to the courts that an arbitrator acted outside the scope of his authority if an objection was not raised before the arbitrator. DePue v. Mastermold, Inc.,
161 Wis. 2d 697,
468 N.W.2d 750 (Ct. App. 1991).
788.10 Annotation
A party disputing the existence of an agreement to arbitrate may choose not to participate in arbitration and may challenge the existence of the agreement by motion to vacate the award under sub. (1) (d). Scholl v. Lundberg,
178 Wis. 2d 259,
504 N.W.2d 115 (Ct. App. 1993).
788.10 Annotation
If arbitrators had a reasonable basis for not following case law, the arbitrators' decision will not be interfered with by the court. Lukowski v. Dankert,
184 Wis. 2d 142,
515 N.W.2d 883 (1994).
788.10 Annotation
“Evident partiality" under sub. (1) (b) exists only when a reasonable person knowing previously undisclosed information would have such doubts about the arbitrator's impartiality that the person would have taken action on the information. DeBaker v. Shah,
194 Wis. 2d 104,
533 N.W.2d 464 (1995).
788.10 Annotation
This section does not prevent the vacation of an arbitration award on the basis of a manifest disregard of the law. Employers Insurance of Wausau v. Lloyd's London,
202 Wis. 2d 673,
552 N.W.2d 420 (Ct. App. 1996),
95-2930.
788.10 Annotation
An arbitrator's award that relied on oral testimony with no formal record, rather than the wording of the prevailing party's proposal, was not final and definite as required by sub. (1) (d). LaCrosse Professional Police Ass'n v. City of LaCrosse,
212 Wis. 2d 90,
568 N.W.2d 20 (Ct. App. 1997),
96-2741.
788.10 Annotation
Courts may vacate an arbitration award that was procured by fraud, but should be hesitant to do so in order to protect the finality of arbitration decisions. To merit vacation of the award, the plaintiff must demonstrate: 1) clear and convincing evidence of fraud; 2) that the fraud materially relates to an issue involved in the arbitration; and 3) that due diligence would not have prompted the discovery of the fraud during or prior to the arbitration. Steichen v. Hensler,
2005 WI App 117,
283 Wis. 2d 755,
701 N.W.2d 1,
03-2990 788.10 Annotation
Evident partiality under sub. (1) (b) cannot be avoided simply by a full disclosure and a declaration of impartiality. The circuit court must vacate an arbitration award under sub. (1) (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. An ongoing attorney-client relationship between an insurer and its named arbitrator is of such a substantial nature that a reasonable person would have serious doubts about the partiality of the arbitrator. Therefore, as a matter of law, the arbitrator was evidently partial and the arbitration award must be vacated. Borst v. Allstate Insurance Co.,
2006 WI 70,
291 Wis. 2d 361,
717 N.W.2d 42,
04-2004.
788.10 Annotation
A presumption of impartiality among all arbitrators, whether named by the parties or not, is adopted. 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. Borst v. Allstate Insurance Co.,
2006 WI 70,
291 Wis. 2d 361,
717 N.W.2d 42,
04-2004.
788.10 Annotation
Sub. (1) (d) requires a court to vacate an arbitrator's award when the arbitrator exceeds his or her powers. Arbitration awards must be vacated when they conflict with governing law, as set forth in the constitution, a statute, or case law interpreting the constitution or a statute. Racine County v. International Ass'n of Machinists & Aerospace Workers,
2008 WI 70,
310 Wis. 2d 508,
751 N.W.2d 312,
06-0964.
788.10 Annotation
Courts will vacate an award when arbitrators exceeded their powers through perverse misconstruction, positive misconduct, a manifest disregard of the law, or when the award is illegal or in violation of strong public policy. When there is no contractual language that would allow for the arbitrator's construction, there is no reasonable foundation for the award. In such a case, the arbitrator perversely misconstrues the contract and exceeds the authority granted by the collective bargaining agreement. Baldwin-Woodville Area School Dist. v. West Central Education Ass'n,
2009 WI 51,
317 Wis. 2d 691,
766 N.W.2d 591,
08-0519. See also Milwaukee Police Supervisors' Organization v. City of Milwaukee,
2012 WI App 59,
341 Wis. 2d 361;
815 N.W.2d 391,
11-1174.
788.10 Annotation
The arbitration panel's decision in this case was properly modified by the circuit court under ss. 788.10 and 788.11 because the arbitrators exceeded their authority by failing to fully review and apply the supreme court's decisions on the collateral source rule and the law of damages. Orlowski v. State Farm Mutual Automobile Insurance Co.,
2012 WI 21,
339 Wis. 2d 1,
810 N.W.2d 775,
09-2848.
788.10 Annotation
A party involved in an arbitration proceeding must ordinarily wait until the arbitrators have reached a final decision on the award to be given, if any, before turning to the circuit courts. Courts that have permitted interlocutory review during an arbitration proceeding have done so only in rare circumstances that present a compelling reason to depart from the normal practice, balancing the need for efficient and orderly arbitration proceedings with the need for an occasional exception to accommodate especially urgent or potentially irreparably prejudicial matters that demand the immediate attention of the courts. Marlowe v. IDS Property Casualty Insurance Co.,
2013 WI 29,
346 Wis. 2d 450,
828 N.W.2d 812,
11-2067.
788.10 Annotation
That an arbitrator made a mistake by erroneously rejecting a valid legal defense does not provide grounds for vacating an award unless the arbitrator deliberately disregarded the law. Flexible Manufacturing Systems v. Super Products Corp.,
86 F.3d 96 (1996).
788.10 Annotation
Borst Clarifies Arbitration Procedures. Frankel. Wis. Law. Dec. 2006.
788.11
788.11
Modification of award. 788.11(1)(1)
In either of the following cases the court in and for the county wherein the award was made must make an order modifying or correcting the award upon the application of any party to the arbitration:
788.11(1)(a)
(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award;
788.11(1)(b)
(b) Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted;
788.11(1)(c)
(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
788.11(2)
(2) The order must modify and correct the award, so as to effect the intent thereof and promote justice between the parties.
788.11 History
History: 1979 c. 32 s.
64; Stats. 1979 s. 788.11.
788.11 Annotation
The intent of the parties controls a determination under sub. (1) (b) whether a matter was submitted to the arbitrator. Milwaukee Professional Fire Fighters Local 215 v. Milwaukee,
78 Wis. 2d 1,
253 N.W.2d 481 (1977).
788.11 Annotation
A court had no jurisdiction to vacate or modify an award if grounds under s. 788.10 or 788.11 did not exist. Milwaukee Police Association v. Milwaukee,
92 Wis. 2d 175,
285 N.W.2d 133 (1979).
788.11 Annotation
The arbitration panel's decision in this case was properly modified by the circuit court under ss. 788.10 and 788.11 because the arbitrators exceeded their authority by failing to fully review and apply the supreme court's decisions on the collateral source rule and the law of damages. Orlowski v. State Farm Mutual Automobile Insurance Company,
2012 WI 21,
339 Wis. 2d 1,
810 N.W.2d 775,
09-2848.
788.12
788.12
Judgment. Upon the granting of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith in the court wherein the order was granted.
788.12 History
History: 1979 c. 32 s.
64; Stats. 1979 s. 788.12.
788.12 Annotation
There is no statutory authority for awarding costs to a party in an arbitration proceeding. Finkenbinder v. State Farm Mutual Insurance Co.,
215 Wis. 2d 145,
572 N.W.2d 501 (Ct. App. 1997),
97-0357.
788.13
788.13
Notice of motion to change award. Notice of a motion to vacate, modify or correct an award must be served upon the adverse party or attorney within 3 months after the award is filed or delivered, as prescribed by law for service of notice of a motion in an action. For the purposes of the motion any judge who might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.
788.13 History
History: 1979 c. 32 s.
64;
1979 c. 176; Stats. 1979 s. 788.13.
788.13 Annotation
The time limit under this section does not apply when the prevailing party moves to confirm under s. 788.09 and an adverse party wishes to raise objections under ss. 788.10 and 788.11. Milwaukee Police Ass'n v. Milwaukee,
92 Wis. 2d 145,
285 N.W.2d 119 (1979).
788.13 Annotation
Under federal labor law, this section governs challenges to arbitration decisions. Teamsters Local No. 579 v. B&M Transit, Inc.,
882 F. 2d 274 (1989).
788.14
788.14
Papers filed with motion regarding award; entry of judgment, effect of judgment. 788.14(1)(1)
Any party to a proceeding for an order confirming, modifying or correcting an award shall, at the time the order is filed with the clerk of circuit court for the entry of judgment thereon, also file the following papers with the clerk of circuit court:
788.14(1)(a)
(a) The agreement, the selection or appointment, if any, of an additional arbitrator or umpire, and each written extension of the time, if any, within which to make the award;
