¶ 97. (dissenting).
Disputes can arise in any area of our lives, in the workplace, in the neighborhood, in school, in business, and in families. Some of those disputes escalate to the point at which one side or the other looks to the court system for resolution, by starting a lawsuit.
In recent years, professionals from a variety of backgrounds have collaborated to develop processes for resolving disputes outside of the court system. These processes are known collectively as "alternative dispute resolution," or simply "ADR."
¶ 98. These words introduce the State Bar of Wisconsin's consumer pamphlet on alternative dispute resolution.1 The Bar explains that ADR may (1) save time; (2) save legal expenses; (3) provide the parties an opportunity for greater control over the dispute resolution process; (4) allow the parties to resolve their conflict in a more creative way than might be possible if the dispute were left to a decision by a judge or jury; (5) give parties greater privacy in resolving their disputes than is afforded in a public courtroom; (6) reduce "the emotional toll" of a lawsuit; and (7) permit valued relationships among the parties to be preserved.2
¶ 99. Binding arbitration is one of several ADR techniques for resolving disputes, but its utility depends upon the willingness and agreement of the parties to settle disagreements outside the courtroom. Binding arbitration cannot be binding if the parties do *410not voluntarily give up the right to determine some or all of their dispute in court.
¶ 100. In this case, the parties agreed to binding arbitration in a written Arbitration Agreement. They agreed that the arbitrator "should have all the powers to . . . make decisions which are normally accorded to the court under the provisions of the Wisconsin Statutes." They agreed that the "arbitration award shall not be modified or re-litigated in the circuit court except as provided in Secs. 788.10 and 788.12 [sic], or as required by Rule 802.12(3). .. ." They further agreed that the circuit court would have continuing jurisdiction to modify the judgment under Wis. Stat. § 767.32 for family support and child support, not property division;3 and they agreed to appellate review of the award beyond the strict limitations of §§ 788.10 and 788.11.
¶ 101. This agreement is not good enough for the majority. In its sweeping assertion of judicial power to review certain binding arbitration awards and the judgments confirming them, the majority opinion eviscerates binding arbitration in actions affecting the family and jeopardizes the finality of binding arbitration in other areas of law. The opinion is thus a setback to ADR in Wisconsin. Because the majority opinion's analysis of the applicable rules and statutes is fundamentally at odds with my understanding of the law, I respectfully dissent.
*411I
¶ 102. Chapter 788 of the Wisconsin Statutes is referred to as The Wisconsin Arbitration Act.4 The chapter authorizes "2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit."5 The agreement to submit "shall be valid, irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract."6
¶ 103. The Wisconsin Arbitration Act dates from 1931.7 Its purposes and provisions have been litigated many times. This litigation has produced settled rules governing review of arbitrators' decisions. Nicolet High Sch. Dist. v. Nicolet Educ. Ass'n, 118 Wis. 2d 707, 712, 348 N.W.2d 175 (1984).
¶ 104. Arbitrators obtain their authority from the contract of the parties. Joint School Dist. No. 10 v. Jefferson Educ. Ass'n, 78 Wis. 2d 94, 101, 253 N.W.2d 536 (1977). Because the parties contract for arbitration, the parties get the arbitrator's award "whether that award is correct or incorrect as a matter of fact or law." City of Madison v. Madison Prof'l Police Officers Ass'n, 144 Wis. 2d 576, 586, 425 N.W.2d 8 (1988) (citing Oshkosh v. Maint. Employees Union Local 796-A, 99 Wis. 2d 95, 103, 299 N.W.2d 210 (1980)). While a court may disagree with the award, it may not substitute its *412judgment for the decision of the arbitrator, Denhart v. Waukesha Brewing Co., 17 Wis. 2d 44, 51, 115 N.W.2d 490 (1962), because the parties contracted for the arbitrator's decision, not the court's. Jefferson Educ. Ass'n, 78 Wis. 2d at 116. Upon review, the function of the court is supervisory in nature. Milwaukee Prof'l Firefighters, Local 215 v. City of Milwaukee, 78 Wis. 2d 1, 22, 253 N.W.2d 481 (1977). It is merely to insure that the parties have received the arbitration that they bargained for. Union Local 796-A, 99 Wis. 2d at 106.
¶ 105. Chapter 788 establishes procedures for selecting arbitrators,8 gathering evidence,9 hearing cases,10 and issuing written arbitral awards.11 The chapter provides for the confirmation of an arbitral award in court:
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.
Wis. Stat. § 788.09 (emphasis added).
¶ 106. The pertinent language in this section is that the court must grant an order confirming the arbitration award "unless the award is vacated, modified or corrected" according to statute. Significantly, a *413party to the arbitration may ask the court to vacate the award on any of four grounds, including fraud,12 or to modify or correct the award on any of three grounds, including material miscalculation of figures.13 .If these circumstances are shown, the court is prohibited from confirming the award. Instead, it must vacate, modify, or correct the award. However, a motion to vacate, modify or correct an award must be served within 3 months after the award is filed or delivered.14 Appeals from such orders or from judgments upon awards may be filed "as from an order or judgment in an action."15
¶ 107. Although there are statutory grounds and statutory procedures for a court to vacate or modify an arbitrator's award, the award is presumptively valid, and it will be disturbed only when its invalidity is demonstrated by clear and convincing evidence. Nicolet, 118 Wis. 2d at 712 (citing Milwaukee Bd. of Sch. Directors v. Milwaukee Teachers' Educ. Ass'n, 93 Wis. 2d 415, 422, 287 N.W.2d 131 (1980)); Dane County v. Dane County Union Local 65, 210 Wis. 2d 267, 275, 565 N.W.2d 540 (Ct. App. 1997). Courts have adopted a "hands off' approach to arbitration awards, Madison Prof'l Police Officers Ass'n, 144 Wis. 2d at 587 (citing WERC v. Teamsters Local No. 563, 75 Wis. 2d 602, 611, 250 N.W.2d 696 (1977)), because there is a strong public policy favoring arbitration as a method for settling disputes. Milwaukee Prof'l Firefighters, 78 Wis. 2d at 21.
¶ 108. Against this background, it is "elementary" that res judicata (claim preclusion) and collateral estop*414pel (issue preclusion) are applicable to arbitration awards. Manu-Tronics v. Effective Mgmt. Sys., 163 Wis. 2d 304, 311, 471 N.W.2d 263 (Ct. App. 1991) (citing Denhart, 21 Wis. 2d at 589; and Restatement (Second) of Judgments § 84 (1982)). These doctrines underscore the finality of binding arbitration awards except in specific enumerated circumstances. An arbitration award under the statute is "irrevocable and binding on the parties." Stradinger v. City of Whitewater, 89 Wis. 2d 19, 33-34, 277 N.W.2d 827 (1979). "Parties who contract for arbitration are entitled to an arbitration award without the added expense of having to relitigate the issue in court." Lukowski v. Dankert, 178 Wis. 2d 110, 113, 503 N.W.2d 15 (Ct. App. 1993), aff'd 184 Wis. 2d 142, 515 N.W.2d 883 (1994).16
II
¶ 109. The majority opinion completely abandons these well-settled principles. It holds, first, that a circuit court may modify a property division arbitral award on equitable grounds before it has been confirmed, and, second, a circuit court may modify a property division arbitral award after it has been confirmed and incorporated into a judgment, in a collateral attack under Wis. Stat. § 806.07. These two propositions contradict virtually every principle of binding arbitration because they eliminate the finality of the arbitral award, permit collateral attack on the arbitral award, and breach the lawful contract of the parties by empowering the court to second-guess the arbitrator on the merits.
*415¶ 110. The majority rationalizes its decision to establish pre-confirmation judicial discretion on the theory that binding arbitration in certain actions affecting the family is authorized by Wis. Stat. § 802.12(3)(c), not Chapter 788, and binding arbitration in family law is different from other binding arbitration. The majority sums up this view with the pronouncement that "Divorce judgments [based in part on arbitral awards] are different. A circuit court is statutorily required to perform an independent, substantive review of [the] parties' agreement before incorporating it in the divorce judgment." Majority op., ¶ 50. The majority relies on Wis. Stat. § 767.255(3)(L) to support this conclusion.
¶ 111. In my view, binding arbitration under § 802.12(3)(c) is exactly the same as binding arbitration under Chapter 788. This is substantiated by the plain language of § 802.12.
¶ 112. Wisconsin Stat. § 802.12 was created by court order in 1993. 93-13 Amendment of Rules of Civil Procedure Chapter 802-Settlement Alternatives, 180 Wis. 2d xv (1993). The amendment "provides express statutory authority for judges to order that litigants attempt settlement through any of several defined processes." See Judicial Council Note, 1993, to 93-13, 180 Wis. 2d at xix.
¶ 113. Wisconsin Stat. § 802.12 defines "binding arbitration" as a dispute resolution process that meets five conditions, including a condition that the award is subject to judicial review under Wis. Stat. §§ 788.10 and 788.II.17 It also defines "nonbinding arbitration."18 *416Both forms of arbitration are permissible settlement alternatives in actions affecting the family.19
¶ 114. The parties choose the type of dispute settlement process they want to use. "Subsection (2)(b) [of § 802.12] prohibits the judge from requiring the parties to submit to binding arbitration without their consent; this restriction preserves the right of trial by jury." Id. (emphasis added).
¶ 115. Then Wis. Stat. § 802.12(3)(c) provides:
(c) If the parties agree to binding arbitration, the court shall, subject to ss. 788.10 and 788.11, confirm the arbitrator's award and incorporate the award into the judgment or postjudgment modification order with respect to all of the following:
1. Property division under s. 767.255.
2. Maintenance under s. 767.26.
3. Attorney fees under s. 767.262.
4. Postjudgment orders modifying maintenance under s. 767.32.
Wis. Stat. § 802.12(3)(c) (emphasis added).
¶ 116. Subsection (3)(c) is quite explicit. Subject to §§ 788.10 and 788.11, the court shall confirm the arbitrator's award and incorporate it into the judgment. It must also incorporate the award into o. postjudgment modification order.
¶ 117. Subsection (3)(c) contrasts with subsections (3) (d) and (e). Paragraph (d) permits the parties to agree to binding arbitration for child custody, visitation, and child support, but paragraph (e) provides that the court "may not confirm the arbitrator's award under *417par. (d)" unless the award conforms to applicable law. The applicable law requires consideration of the "best interest of the child."20 Hence, paragraph (e) authorizes additional judicial oversight — beyond Wis. Stat. §§ 788.10 and 788.11 — to awards under paragraph (d). By contrast, paragraph (c) does not anticipate judicial oversight beyond application of §§ 788.10 and 788.11. These two sections provide the only statutory criteria for judicial review under § 802.12(3) (c), so long as the prerequisite conditions of § 802.12(1)(a) have been satisfied.21
¶ 118. Wisconsin Stat. § 802.12(3)(c) is absolutely clear that except for determinations under §§ 788.10 and 788.11, the court shall confirm the arbitrator's award and incorporate a property division under § 767.255 into the judgment. It is astounding for the *418majority to assert that Wis. Stat. § 767.255(3)(L) is an independent source of authority for judicial review of an arbitrator's award on property division before confirmation.
¶ 119. This assertion is in direct conflict with the plain language of the statute. When the majority insists that the circuit court may conduct its own evaluation of whether a property division is inequitable as to either party before confirming the arbitral award, it is transforming binding arbitration under subsection (3)(c) into a form of nonbinding arbitration. It is saying that the parties did not really contract for an arbitrator's binding decision on property division; they contracted and paid for an arbitrator's advisory decision subject to judicial review of the merits. This is simply rewriting the statute.
Ill
¶ 120. The history of Wis. Stat. § 802.12 supports the view that the Judicial Council and the supreme court intended traditional binding arbitration under § 802.12(3)(c).
¶ 121. First, the original draft of the rule petition, filed in the Supreme Court Clerk of Courts office on February 11, 1993, reads in part:
(4)(c) If the parties agree to binding arbitration, the court shall, subject to ss. 788.10 and 788.11, confirm the arbitrator's decision [on enumerated issues]....
(d) If the parties agree to binding arbitration, the court may, subject to ss. 788.10 and 788.11, confirm the arbitrator's award [on other enumerated issues]... The court may not confirm the arbitrator's child support award ... unless the child support is determined in the manner required under s. 767.75 or s. 767.51.
*41993-13 Rule Petition (Feb. 11, 1993) (emphasis added).
¶ 122. This early draft established a different role for the circuit court under paragraph (c) than under paragraph (d), with paragraph (c) affording the court no discretion to review the award on the merits. Paragraph (c) was never substantively revised in the rule-making process, whereas paragraph (d) was revised and paragraph (e) was added to ameliorate concerns that child custody, placement, and visitation, as well as child support, not be treated the same as adult-financial issues.
¶ 123. Second, at the October 19, 1993, public hearing on the rule petition, Attorney Barbara J. Becker, then chair of the Board of Directors of the Family Law Section of the State Bar of Wisconsin, testified that the Section strongly supported binding arbitration for adult-financial issues. She said:
In the fall of 1992, the Family Law Section Board by an overwhelming majority voted to support the Judicial Council Alternative Dispute Resolution petition. The section requested the Judicial Council to incorporate in the petition specific reference to family law actions ...
The section also requested the Judicial Council to separate out the money issues relating to adults in divorce, i.e., property division, maintenance, and attorney fees, from the child related issues of custody, placement, visitation, and child support as to binding arbitration. It was the consensus of the Board ... that binding arbitration should be available to settle divorce cases.
The Board wanted to be sure that it was very clear in the proposed rule that the trial court shall approve binding arbitration on the adult related financial issues and that the court may approve binding arbitration on *420the child related issues. This was to preserve the jurisdiction of the circuit court to protect the minor children from the possible improvidence of their parents.
[In August 1993, the Board reconsidered its position. The vote was closer than it had been the year before.] The general consensus in the Board [after the second vote] is that binding arbitration should be allowed in family law cases. There is also a general consensus that adult financial issues should be distinguished from child related issues and that the adult related [financial] issues should be subject to binding arbitration.
Testimony of Barbara J. Becker 1-2 (Oct. 19, 1993).
¶ 124. The themes set out by Attorney Becker in her testimony were echoed repeatedly by others who communicated with the court. For instance, Attorney Joan F. Kessler , wrote that "The proposed statute provides that the court must confirm an arbitration award involving finances, and may confirm an award involving custody/visitation issues, if the process has been properly invoked and followed." Letter from Joan F. Kessler to Justices of the Wisconsin Supreme Court 5 (Oct. 18, 1993).
¶ 125. Dane County Family Court Commissioner Ralph J. Guerin and three assistant family court commissioners wrote that they had "no difficulty with the submission of financial issues to binding arbitration" but thought it was "inappropriate for arbitrators to be entering binding decisions in matters relating to custody or placement." Letter from Ralph J. Guerin, et al. to Supreme Court Justices (Oct. 19, 1993).
*421¶ 126. Ann L. Milne, a national leader in family counseling, wrote: "I support allowing parties to voluntarily choose to arbitrate their divorce-related disputes, including financial and child-related issues. The premise behind alternative dispute resolution is to provide a full range of dispute resolution alternatives. . .. The ongoing jurisdiction of the court, parens patriae, over all child-related, matters presumes that the court will review all stipulations and all orders to be signed by the court in light of the 'best interest of the child doctrine.'" Letter from Ann L. Milne to Justices of the Wisconsin Supreme Court (Oct. 18,1993) (emphasis added).
¶ 127. Attorney Allan R. Koritzinsky advised the court after the hearing that "This past Saturday, the Board of Directors of the State Bar Family Law Section reaffirmed its position, unanimously requesting that the Supreme Court adopt the Rule, including the arbitration provisions for all adult financial issues and child support. Reasonable debate remains only on the child-related arbitration provisions, excluding child support." Letter from Allan R. Koritzinsky to Clerk of Wisconsin Supreme Court (Oct. 27, 1993).
¶ 128. The gist of these communications is that binding arbitration for adult-financial issues such as property division was expected and intended to be traditional binding arbitration.
¶ 129. Third, there was one conspicuous opponent to any binding arbitration for actions affecting the family. Attorney Linda S. Balisle testified at the October 19 hearing as follows:
I speak against that part of the petition which provides binding arbitration in family law cases be*422cause I think it is a grave mistake to restrict this court's review of family law decisions rendered by private attorneys .. .
Currently, divorcing parties may arbitrate any or all issues in their divorce.. .. The trial court may consider the arbitrator's award in reaching its own decision, but is not bound by it.
The petition that is before this court would require the trial court to give deference to the arbitrator's award and would limit the trial court's ability to modify or vacate the award consistent with the provisions of Wis. Stat. secs. 788.10 and 788.11. Further, it would limit the Court of Appeals and the Supreme Court's review of these family law cases to the narrow issues of whether the trial court properly applied Secs. 788.10 and 788.11 in affirming or modifying an arbitrator's award.
This court has reversed experienced trial court judges and the Court of Appeals in family law cases. involving issues of maintenance and property division. A review of those cases shows that if an arbitrator had made the decision the trial courts made in those cases, this court would have been unable to reverse those decisions.
Why should this court give greater deference to a private attorney [than] it would to a trial court or the Court of Appeals?
Testimony of Linda S. Balisle 1, 5 (Oct. 19, 1993).
¶ 130. The majority opinion makes reference to Attorney Balisle’s dramatic appeal, but it fails to acknowledge that the court rejected her request to re*423move binding arbitration on family issues from the rule. The court did not revise subsection (3)(c). Rather, it adopted a rule with traditional binding arbitration for adult-financial issues in family law cases.
IV
¶ 131. The majority attempts to overcome the plain language and history of Wis. Stat. § 802.12(3)(c) by asserting that they are subsidiary to Wis. Stat. § 767.255(3)(L). This analysis misses the mark.
¶ 132. Section 767.255(3) begins with the directive that the court "shall presume that all property not described in sub. (2)(a) is to be divided equally." The subsection then authorizes the court to alter this presumption after considering certain factors, including the length of the marriage and the age and health of the parties. One of the other enumerated factors to consider in dividing property is:
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
Wis. Stat. § 767.255(3)(L) (emphasis added).
¶ 133. In the typical case where the court is called upon to divide property, the "written agreement made by the parties" is an agreement dividing and distributing marital assets, both tangible and intangible. The "agreement" may divide assets equally in terms of value, or it may divide them unequally. It may distribute a specific asset to a particular party. In this sort of private *424written agreement, one spouse may have tremendous influence or leverage over the other, producing an unfair property division. In such a situation, the court is not bound by the parties' agreement.
¶ 134. The only "agreement" at issue in a binding arbitration case, however, is the "agreement to submit" property division to binding arbitration. The parties do not agree to divide the property in a certain way — they agree to submit the issue to binding arbitration. How can it be said that the "terms" of such an agreement "are inequitable as to either party"?
¶ 135. The majority relies on "public policy" derived from several sources, including Wisconsin cases that did not involve binding arbitration under Wis. Stat. § 802.12(3)(c), to conclude that marriage contracts are different from other contracts and that a "court protects the parties' and public interests by reviewing the substantive provisions of any agreement affecting the division of property." Majority op., ¶ 38. There is no disagreement with this policy in a case that does not involve binding arbitration. The issue in this case, however, is whether a court is entitled to act as a "free safety"22 in equity when the parties, in complete con*425formity to law, have contracted for someone other than the court to arbitrate a property division and bind the parties.
¶ 136. In my view, the court has no authority under Wis. Stat. § 767.255(3)(L) to second-guess the arbitrator's decision on property division. There is no need to harmonize § 767.255(3)(L) with § 802.12(3)(c) when the parties have voluntarily contracted to give the arbitrator responsibility to balance the equities between them. It is the arbitrator who considers paragraph (L).
V
¶ 137. There is no dispute that the circuit court must vacate an arbitrator's award before it is confirmed, under the terms of Wis. Stat. § 788.10, when a contesting party satisfies the burden of proof. There is no dispute that the circuit court must modify or correct an arbitrator's award before it is confirmed, under the terms of Wis. Stat. § 788.11, when such a party shows error. There is also no dispute that a party may appeal a circuit court order or judgment on these matters "as from an order or judgment in an action," under Wis. Stat. § 788.15. But this case does not involve any of these options.
¶ 138. This case involves a motion under Wis. Stat. § 806.07 to reopen a divorce judgment after the circuit court confirmed the adult-financial components of the arbitral award and incorporated them into the judgment. The motion under § 806.07 was a collateral attack on the judgment, coming more than 11 months after the judgment was entered, and long after the time to appeal the judgment had expired.
¶ 139. Section 806.07 reads in part:
*426Relief from judgment or order. (1) On motion and upon such terms as are just, the court. . . may relieve a party ... from a judgment, order or stipulation for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable neglect;
(c) Fraud, misrepresentation, or other misconduct of an adverse party;
(g) It is no longer equitable that the judgment should have prospective application; or
(h) Any other reasons justifying relief from the operation of the judgment.
¶ 140. Wisconsin courts have asserted authority under § 806.07 to modify the property divisions in judgments, Conrad v. Conrad, 92 Wis. 2d 407, 413-14, 284 N.W.2d 674 (1979); Spankowski v. Spankowski, 172 Wis. 2d 285, 290, 493 N.W.2d 737 (Ct. App. 1992); Thorpe v. Thorpe, 123 Wis. 2d 424, 426, 367 N.W.2d 233 (Ct. App. 1985), even though Wis. Stat. § 767.32(1), which permits revisión of certain judgments, does not permit revision or modification of "the provisions of a judgment or order with respect to final division of property." The Spankowski decision stressed the family court's "discretionary authority to grant relief from the judgment." 172 Wis. 2d at 290.
¶ 141. None of the cases cited dealt with a binding arbitration award. Until today, circuit courts have not had "discretion" to review arbitration awards on an equitable basis. Logically, a circuit court should not *427have more "discretion" to revise a binding arbitration award under § 806.07 than it has under § 802.12(3)(c). That is why the majority devotes such effort to establishing that binding arbitration in actions affecting the family is different from other binding arbitration — that is, it does not "bind" the court.
¶ 142. Wisconsin Stat. § 806.07 is based upon Rule 60(b) of the Federal Rules of Civil Procedure. Patricia Graczyk, The New Wisconsin Rules of Civil Procedure, chapters 805-807, 59 Marq. L. Rev. 671, 726 (1976). Hence, federal rules decisions interpreting Federal Rule 60(b) may be helpful in interpreting the Wisconsin rule. See Split Rock v. Lumber Liquidators, 2002 WI 66, ¶ 14, 253 Wis. 2d 238, 646 N.W.2d 19. Traditionally, federal courts interpret Rule 60(b) in tandem with Title 9 of the United States Code (the Federal Arbitration Act).
¶ 143. The principles embedded in the federal cases are clear. "Judicial review of arbitration awards is narrow because arbitration is intended to be the final resolution of disputes." Nat'l Wrecking Co. v. Int'l Bhd. of Teamsters, Local 731, 990 F.2d 957, 960 (7th Cir. 1993). "Where parties have selected arbitration as a means of dispute resolution, they presumably have done so in recognition of the speed and inexpensiveness of the arbitral process; federal courts ill serve these aims ... by engaging in any more rigorous review than is necessary to ensure compliance with statutory standards." Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 164-65 (D.C. Cir. 1981). The Federal Arbitration Act "does not, it must be stressed, confer on courts a general equitable power to substitute a judicial resolution of a dispute for an arbitral one; rather. . . '[i]t is the arbitrator's construction [of a contract] which was bargained for,' and not that of the courts." Id. at 165 *428(quoting United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960)).
¶ 144. Federal courts have consistently applied these principles. For example, in Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 442 F.2d 1234 (D.C. Cir. 1971), the district court granted summary judgment to sustain an arbitrator's award. The Guild then filed a motion to reopen the judgment under Federal Rule 60(b) on grounds of newly available evidence. The court of appeals said:
[I]t was the Guild's bargain with the Post to have disputes over the discharge of employees settled by arbitration, with all of its well known advantages and drawbacks. To give appellant a rematch before the arbitrator, merely because a witness who refused to enter the original contest has now decided to participate, would be not only to give the Guild more than the benefit of its bargain in this case, but would undercut the finality and therefore the entire usefulness of arbitration as an expeditious and generally fair method of settling disputes. As District Judge Aubrey Robinson put it in this case: SU32Unless parties are bound by the records made before the arbitrators, the piecemeal or staggered submission of evidence would be likely to erode the effectiveness of arbitration as a speedy and efficient forum for resolving labor disputes.
These considerations demonstrate substantial cause for not applying Rule 60(b) remedies to final arbitration awards. Of course, neither Rule 60(b) per se nor, for that matter, any other of the Federal Rules of Civil Procedure was ever designed to apply to proceedings in other than the United States District Courts.
*429In sum, we think that neither Rule 60(b) nor any judicially constructed parallel thereto was meant to be applied to final arbitration awards, and that the District Court was correct in denying appellant's motion.
Id. at 1238-39 (emphasis added).23
¶ 145. The majority seeks to distinguish cases following the seminal Washington Post decision. It points to three cases in which federal courts have said that Rule 60(b) may be used "to open a judgment that confirms an arbitration award." Majority op., ¶ 27 n.10. These three cases require individual analysis.
¶ 146. In 1983 the Seventh Circuit reversed a district court decision reopening an arbitration award under Rule 60(b). Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673 (7th Cir. 1983). Writing for the court, Judge Richard Posner declared:
If Leatherby had wanted its dispute with Merit resolved by an Article III judge ... it would not have inserted an arbitration clause in the contract, or having *430done so move for arbitration against Merit's wishes. Leatherby wanted something different from judicial dispute resolution. It wanted dispute resolution by experts in the insurance industry, who were bound to have greater knowledge of the parties, based on previous professional experience, than an Article III judge, or a jury. The parties to an arbitration choose their method of dispute resolution, and can ask no more impartiality than inheres in the method they have chosen.
Id. at 679.
¶ 147. Judge Posner explained that Rule 60(b) places a high value on the social interest in finality of litigation. Id. at 682. Then he went on: "To make out a case for relief from judgment under Rule 60(b)(6) Leatherby had to show not only that an arbitrator had violated the ethical and legal standards for arbitrators but that the violation created a substantial danger of an unjust result." Id. at 682-83.
¶ 148. This latter statement implied that Rule 60(b) could be used to reopen a judgment based on an arbitrator's award. However, the court cited no authority for its statement and did not apply it to the facts. As noted, the district court's grant of the motion was reversed.
¶ 149. Leatherby's Rule 60(b)(6) motion to reopen the judgment was filed 18 months after the award had been issued by the arbitrators. Consequently, the motion was at odds with the language in 9 U.S.C. § 12, that "[njotice of a motion to vacate, modify, or correct an award must be served upon the adverse party. . . within three months after the award is filed or delivered."
¶ 150. The purpose of Title 9 was to make arbitration agreements as enforceable as other contracts. *431Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1113 (3rd Cir. 1993); Supak & Sons Mfg. Co. v. Pervel Indus., Inc., 593 F.2d 135, 137 (4th Cir. 1979). Permitting Rule 60(b) to be used to reopen a judgment incorporating an arbitration award is really nothing more than permitting the court to reopen the arbitration award itself. This is highly problematic, because literal application of Rule 60(b) would permit a party to move to reopen the judgment for, say, misrepresentation, up to four times longer after judgment is entered than before judgment is entered.24 This makes no sense because it undermines the purpose of alternative dispute resolution. It severs the arteries of binding arbitration under Title 9 by disregarding the time limits in Title 9. Because the Leatherby court provided no authority or rationale for its observation and did not apply it, the observation should be regarded as dictum.
¶ 151. In a second case, Baltia Air Lines, Inc. v. Transaction Management, Inc., 98 F.3d 640 (D.C. Cir. 1996), the court stated that "Rule 60(b) is an appropriate vehicle by which to challenge a judgment confirming an arbitration award." Id. at 642. Here, too, the court cited no authority for its statement and did not apply it because the motion under Rule 60(b), which suggested newly discovered evidence and fraud, was filed more than a year after the judgment on the award was entered. Hence, the court relied upon the time limit in the rule as the basis for denying relief.
*432¶ 152. In the third case, Clarendon National Insurance Company v. TIG Reinsurance Company, 183 F.R.D. 112 (S.D.N.Y. 1998), Federal District Judge Robert Sweet did apply Rule 60(b) to reopen a judgment, and he did pen language that substantiates the majority's position. He noted that:
Clarendon does not suggest the use of Rule 60(b) to modify the arbitration award itself. It is well-established that Rule 60(b) does not apply to such awards. See Cook Chocolate Co. v. Salomon, Inc., 748 F. Supp. 122, 125 (S.D.N.Y 1990) (holding that Rule 60(b) cannot be utilized to vacate an arbitration award), aff'd 932 F.2d 955 (2nd Cir. 1991). Rather, Clarendon invokes the Rule to modify the Judgment entered by this Court.
Clarendon, 183 F.R.D. at 117.
¶ 153. However, the Clarendon case presented unusual facts: Clarendon moved, under authorized Title 9 procedures, to vacate the arbitration award issued in the arbitration proceeding between it and TIG Reinsurance Company. TIG cross-moved to confirm the award in part and to remand one issue for further determination by the arbitrators. The district court granted the cross-motion, confirming the award as to certain issues and remanding other issues to the arbitrators. See Clarendon National Insurance Company v. TIG Reinsurance Company, 990 F. Supp. 304 (S.D.N.Y. 1998). The court subsequently entered judgment on the parts of the award it had confirmed.
¶ 154. On remand, the arbitrators themselves reopened issues that they had previously decided, to correct an arithmetic error in their original award. Then they issued a revised award, including new issues, which Clarendon sought to confirm. At the same time, Clarendon moved under Rule 60(b) for relief from the previous judgment to correct the acknowledged error.
*433¶ 155. The court described the case as presenting "extraordinary circumstances." Clarendon, 183 F.R.D. at 118. The case was not closed because the court had remanded certain issues to the arbitrators, and the arbitrators issued a revised award in which they explicitly acknowledged a mathematical error. The principal issue in the case the second time it went to court was whether the arbitrators could correct their mathematical error. The court ruled that they could, and it then confirmed the modified award. Having done that, the court modified its previous, inconsistent judgment.
¶ 156. The Clarendon case is thus very different factually from the case at hand. In the present case, the court reopened a judgment without remanding any issues to the arbitrator. In a collateral proceeding, it took new evidence and revised the arbitration award based, in part, on evidence not available to the arbitrator at the close of the arbitration proceeding. The Franke case cannot be compared to Clarendon because it sweeps past Clarendon and every other state and federal case that has been brought to the attention of the court.
VI
¶ 157. The majority's use of § 806.07 to reopen the merits of a binding arbitration award is ominous and raises questions about all binding arbitration awards. After all, Ms. Franke relies on Wis. Stat. § 788.14(3),25 which unambiguously applies to all arbitration under Chapter 788, as her basis for invoking § 806.07. The majority opinion fails to repudiate this *434premise. Indeed, it cites the Clarendon case in which the federal court regrettably relied on Section 13 of the Federal Arbitration Act, which parallels § 788.14(3),26 to support the view that the basic arbitration statute permits courts to reopen judgments confirming arbitration awards. The majority attempts to downplay the potential scope of its ruling by assuring us that it determines only the applicability of § 806.07 to family law arbitration cases. However, once the § 806.07 door is opened, it will be hard to close. The majority's application of § 806.07 to a judgment incorporating a binding arbitration award implies that all subsections of § 806.07 may be utilized to attack arbitral awards incorporated into judgments. This is bound to spawn future litigation and undermine the finality of arbitration awards.
¶ 158. As a general rule, § 806.07(1) does not apply to judgments based on arbitration awards. Any other conclusion is inconceivable because it would authorize judicial tampering with all binding arbitration awards after judgment, thereby making them nonbinding, and trivialize the protections of arbitration awards found elsewhere in the statute. As a last resort, a party *435may file an independent action under Wis. Stat. § 806.07(2) to relieve it from a judgment based upon a direct fraud on the court.
VII
¶ 159. The majority opinion subverts the principles of binding arbitration in at least two additional ways. First, the majority concludes that the closing of the arbitration record does not create a categorical exception to Wis. Stat. § 767.27(2).
¶ 160. Second, the majority concludes that an appellate court should review a circuit court's decision to grant relief from an arbitration award under Wis. Stat. § 806.07 using an erroneous exercise of discretion standard.
¶ 161. The implications of these determinations will be discussed in turn. Wisconsin Stat. § 767.27(1) provides that in any action affecting the family "the court shall require each party to furnish, on such standard forms as the court may require, full disclosure of all assets owned in full or in part by either party separately or by the parties jointly." Wisconsin Stat. § 767.27(2) then provides:
Disclosure forms required under this section shall be filed within 90 days after the service of summons or the filing of a joint petition or at such other time as ordered by the court or circuit court commissioner. Information contained on such forms shall be updated on the record to the date of hearing.
Wis. Stat. § 767.27(2) (emphasis added).
¶ 162. These provisions apply indisputably when the responsibility for making decisions on such issues as property division and maintenance is assigned to the *436court. In the normal situation, the court should set the rules for securing information and the court will value and divide the property as of the date of the divorce.
¶ 163. Of course, binding arbitration under Wis. Stat. § 802.12(3)(c) is not the normal situation. The parties have contracted for a determination by the arbitrator, not the court, and the arbitrator should set the ground rules for securing evidence, including the deadline for submitting evidence.
¶ 164. The majority proceeds as though there were no agreement for binding arbitration — as though information not available and circumstances not present at the time the arbitration record is closed may be used by a court to reevaluate the award on property division in a judicial decision on the merits. By outlining the possibility that issues will be determined on information not available to the arbitrator, the majority effectively erases any deference to the arbitrator and invites circuit court intervention on equitable grounds. Deference to the arbitrator requires that the arbitrator, not the court, determine when the record is closed. This is a categorical exception to § 767.27(2).
¶ 165. As for the standard of review, an appellate court is inclined to show deference to a discretionary decision by the circuit court. However, in a case involving binding arbitration, an appellate court ought to be showing deference to the arbitrator's award, because it is presumed to be correct.
¶ 166. In Lane v. Williams, 2000 WT App 263, ¶ 6, 240 Wis. 2d 255, 621 N.W.2d 922, the court stated:
We review an arbitration award without deference to the trial court. Our function is to insure that the parties received the arbitration they bargained for. See City of Madison v. Local 311, International Ass'n of *437Firefighters, 133 Wis. 2d 186, 190, 394 N.W.2d 766 (Ct. App. 1986). The circuit court may modify an award only on the grounds specified by statute. See McKenzie v. Warmka, 81 Wis. 2d 591, 603, 260 N.W.2d 752 (1978).
¶ 167. The majority seeks to get around this black letter law by shifting the focus from the arbitration award to the "discretionary" decision to reopen the judgment. No doubt, a court does exercise discretion when it reopens a judgment under Wis. Stat. § 806.07. But to exercise that discretion here — that is, to reopen an arbitration award by reopening the judgment — is incompatible with binding arbitration and should make it obvious why § 806.07 may not be used in a case like this.27 Once again, to reach its conclusion, the majority redefines binding arbitration.
VIII
¶ 168. Thirteen years ago this court decided that the parties to a divorce may, under certain circumstances, stipulate that their property division and agreed-upon maintenance payments are permanent and may not be modified in the future by a court. Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991). In Nichols, a former spouse moved for an increase in maintenance nine years after the divorce. The circuit court denied the motion on grounds that the divorce judgment had incorporated the parties' stipulation that "Said property division and maintenance payments of petitioner, Mitzi Nichols, to be considered as *438permanent and in lieu of any further or additional maintenance payments, except said maintenance payments shall terminate upon remarriage of [Mitzi Nichols]." Id. at 101.
¶ 169. The court of appeals reversed, citing Wis. Stat. §§ 767.32(1) and 767.08(2)(b) and reasoning that the provision of the judgment that maintenance is not subject to modification violated public policy. Id. at 102-03. This court reversed the court of appeals, saying:
As a general rule, maintenance is always subject to modification upon a showing of the requisite change in circumstances. However, in [Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984)], we recognized an exception to the general rule that maintenance is always subject to modification when we held that a party is estopped from seeking modification of the terms of a stipulation incorporated into a divorce judgment...
Id. at 103-04 (citations omitted). We held that the party to a divorce judgment is estopped from seeking an increase in maintenance if four conditions are met:
[F]irst, the parties freely and knowingly stipulated to fixed, permanent, and nonmodifiable maintenance payments and said stipulation was incorporated into the divorce judgment; second, the stipulation was part of a comprehensive settlement of all property and maintenance issues which was approved by the circuit court; third, the overall settlement, at the time it was incorporated into the divorce judgment, was fair, equitable, not illegal, and not against public policy; and, fourth, the party seeking release from the terms of the divorce judgment is seeking release on the grounds that the court did not have the power to enter the judgment without the parties' agreement.
*439Id. at 100-101. One of the reasons the court gave for its decision was that:
[A]llowing the decision of the court of appeals to stand will discourage the settlement of divorce cases. The advantage of agreements providing that maintenance is not subject to modification is certainty and finality. If nonmodifiable maintenance is not really nonmodifiable, there will be no motivation for a payor spouse to enter into stipulations such as the agreements in Rintelman, Ross,28 and the one in the case at bar. Therefore, the decision of the court of appeals will discourage settlements, contrary to the public policy of this state.
Id. at 115.
¶ 170. The court's decision was not unanimous. The dissent argued that "the public policy of this state, as reflected in the divorce statutes over the years, is to allow the courts to modify maintenance to protect both spouses should circumstances change after the judgment is entered." Id. at 117 (Abrahamson, J., dissenting).
¶ 171. Although the present case deals with property division, not maintenance, the views of the dissent in Nichols are now enshrined in the majority opinion. The result is to obliterate binding arbitration in actions affecting the family. To paraphrase the Nichols majority, if binding arbitration is not really binding, there will be no motivation for the parties to agree to it, contrary to the public policy of this state.
¶ 172. It should be evident that time-tested principles of binding arbitration have been overwhelmed in this case by a belief that Martin T. Franke deceived the arbitrator and defrauded his wife.
*440¶ 173. But did he?
¶ 174. The majority's conspicuous failure to discuss the facts of this case is a telling acknowledgement that the record may not support the misconduct the majority implies.29
¶ 175. I am authorized to state that Justices JON E WILCOX and DIANE S. SYKES join this opinion.The text of the State Bar's consumer pamphlet may be found on the Bar's website at http:llwww.legalexplorer.coml legal/legal-QA.asp?PositionPoint (last updated Nov. 2002).
Id.
The majority suggests that the parties themselves agreed in the Arbitration Agreement to give the court continuing jurisdiction so as to permit motions to reopen the judgment on all subjects. If this novel construction were correct, it would render superfluous the Agreement's clarifying reference to Wis. Stat. §§ 767.32 and 767.325. See Majority op., ¶ 26 n.9.
Wis. Stat. § 788.17.
Wis. Stat. § 788.01.
Id.
Ch. 274, Laws of 1931. "The Wisconsin Arbitration Act, enacted in 1931, obviously was intended to make arbitration agreements subject to Wisconsin law specifically enforceable." Madison v. Frank Lloyd Wright Foundation, 20 Wis. 2d 361, 383, 122 N.W.2d 409 (1963).
Wis. Stat. § 788.04.
Wis. Stat. §§ 788.06(2) and 788.07.
Wis. Stat. § 788.06.
Wis. Stat. § 788.08.
Wis. Stat. § 788.10.
Wis. Stat. § 788.11.
Wis. Stat. § 788.13.
Wis. Stat. § 788.15.
"The whole purpose of arbitration is to substitute a less-expensive and less-formal method of settling differences between parties for normal court litigation." Frank Lloyd Wright Foundation, 20 Wis. 2d at 383.
Wis. Stat. § 802.12(l)(a).
Wis. Stat. § 802.12(l)(h).
Wis. Stat. § 802.12(3)(a).
See Wis. Stat. §§ 767.045, 767.11, 767.24, 767.245, 767.25.
The judges, professors, and attorneys responsible for compiling the Wisconsin Judicial Benchbook have recognized this commonsense reading of § 802.12(3)(c-e), subjecting child-related matters to special judicial scrutiny not applicable to property division. The Family section of the Benchbook differentiates between custody and physical placement, visitation, and child support on the one hand and property division, maintenance, and attorney fees on the other. Wisconsin Judicial Benchbook: Family, FA 3-6 to 3-7 (2d ed. 2001). The Benchbook notes that the latter category is exempt from the additional judicial oversight that must accompany binding arbitral awards in child-related matters. While the Benchbook is not intended to stand as independent legal authority for any proposition of law, its clear recitation of Wisconsin ADR principles as understood by many of the state's eminent family law experts stands in stark contrast to the majority's discovery of "tension" between § 802.12(3)(c) and § 767.255(3)(L). Majority op., ¶ 46.
In football, a "free safety" is a defensive player who has "no specific assignment at the snap of the ball." Random House Unabridged Dictionary 764 (2d ed. 1993). Although the free safety frequently "lines up the deepest in the secondary and defends the deep middle of the field against the pass," the player may change position unpredictably to provide double coverage against a pass receiver or blitz the passer. See http://football.about.com/cs/footballl01lg/gl_freesafety.htm (last visited January 26, 2004). In binding arbitration, the parties contract to exclude the court from acting unpredictably or providing double coverage.
In Bledsoe v. Dalkon Shield Claimants Trust (In re A.H. Robins Company), 112 F.3d 160 (4th Cir. 1997), one of the parties attempted to use Rule 60(b) to challenge the arbitrator's award directly. The court said:
Neither the Agreement nor the ADR Rules contain a provision permitting either party to seek a new hearing after the referee issues a decision. The absence of any provision providing for post-decision review is not unintentional. We believe that it constitutes a deliberate omission, because any rule permitting such immediate review would contravene the very goal of the ADR process — the efficient, fair, and final resolution of claims against the Trust. Consequently, we hold that the district court did not abuse its discretion in finding that Rule 60(b) relief from this particular ADR procedure was not available to those claimants who elected to have their claims resolved in ADR.
Id. at 163.
Federal Rule 60(b) requires that a motion to relieve a judgment "shall be made within a reasonable time, and for reasons (1) [mistake, inadvertence, surprise, or excusable neglect], (2) [newly discovered evidence], and (3) [fraud, misrepresentation, or other misconduct of an adverse party] not more than one year after the judgment... was entered or taken."
Wis. Stat. § 788.14(3) reads as follows:
The judgment so entered shall have the same force and effect, in all respects, as, and be subject to all the provisions of *434law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered.
Section 13 of Title 9 provides in part: "The judgment so entered shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered." 9 U.S.C.A. § 13 (emphasis added). The Clarendon case appears to be the only case directly linking 9 U.S.C. § 13 to Federal Rule 60(b).
In McDaniels v. Brown, 740 A.2d 551, 555 (D.C. 1999), the District of Columbia court said: "A judgment entered upon an arbitration award may not be made the subject of a motion under Rule 59 or Rule 60(b) of the Superior Court's Rules of Civil Procedure, see, e.g., Siddig v. Ostheimer, 572 A.2d 447, 450 (D.C. 1990)."
Ross v. Ross, 149 Wis. 2d 713, 439 N.W.2d 639 (Ct. App. 1989).
In Judge Sweet's first opinion in the Clarendon case, he wrote:
Courts have held that, "[o]nly the most egregious error which adversely affects the rights of a party" constitutes misconduct and "[elrroneous exclusion of evidence does not in itself provide a basis for vacating an award absent substantial harm to the moving party." In Matter of Consolidated Arbitrations Between A.S. Seateam v. Texaco Panama, Inc., No. 97 Civ. 0214, 1997 WL 256949, *7 (S.D.N.Y. May 16, 1997). Further, such misconduct “must amount to a denial of fundamental fairness of the arbitration proceeding." Areca, Inc. v. Oppenheimer & Co., 960 F. Supp. 52, 54-55 (S.D.N.Y. 1997).
Clarendon Nat'l Ins. Co. v. TIG Reinsurance Co., 990 F. Supp. 304, 310 (S.D.N.Y 1998).