(concurring in part and dissenting in part). I would affirm the Court of Appeals because it did not err in concluding that the arbitrators felt bound to apply either the two-year medical malpractice1 or six-year contract2 statute ofiimitations.3
The Court of Appeals recognized that the timeliness of an arbitration proceeding is to be determined by the arbitrators. The Court said that the *14arbitration panel "did not utilize the two-year statute of limitations in an analogous manner,” but rather "applied the statute directly to bar plaintiffs’ demand.”4
The Court of Appeals acknowledged that the "statute of limitations may be used by an arbitration panel as a guide to determining the timeliness of a demand . . . .” (Emphasis in original.)5 The Court went on to hold, however, that the statute of limitations cannot be applied "directly to arbitration proceedings to bar untimely demands.” (Emphasis in original.)6
The same principle that requires remand to a trial judge to exercise discretion where it appears that the judge was not aware that discretion was to be exercised,7 requires remand to a panel of arbitrators that so clearly felt bound to apply, in the words of the Court of Appeals, the statute of limitations "directly” to bar the cause of action without regard to other factors that might appropriately be considered.
I would affirm the Court of Appeals and, accordingly, would remand to the panel of arbitrators for further proceedings consistent with the opinion of the Court of Appeals.
Cavanagh, C.J., and Boyle, J., concurred with Levin, J.MCL 600.5805(4); MSA 27A.5805(4).
MCL 600.5807; MSA 27A.5807.
The arbitration panel said:
This panel, however, is bound by the law of the State of Michigan as it applies to this issue.
Plaintiffs also claim that since the arbitration of this proceeding is controlled by an Arbitration Agreement, i.e. a contract, signed by the plaintiff at the time of her admission to Butter-worth Hospital, that Michigan’s six year statute of limitations on contracts and not the two year statute should apply. Firstly, this proceeding is not brought as a result of any "breach” of the arbitration agreement. The arbitration agreement does not establish substantive rights and duties of the parties in their dealings with each other, but rather only establishes the forum where any prospective disputes are to be resolved. Secondly, it certainly would be illogical to conclude that the Legislature intended by adopting the Michigan Medical Malpractice Arbitration Act to extend three fold the commonly understood two year statute of limitations.
182 Mich App 507, 513; 452 NW2d 848 (1990).
Id.
Id.
Kelso v Montgomery Ward & Co, Inc, 439 Mich 868 (1991); Fetz Engineering Co v Ecco Systems, Inc, 439 Mich 977 (1992).