                                                                        2013 WI 29

                  SUPREME COURT                  OF    WISCONSIN
CASE NO.:                 2011AP2067
COMPLETE TITLE:           Mary E. Marlowe and Leslie R. Marlowe,
                                    Plaintiffs-Respondents-Petitioners,
                               v.
                          IDS Property Casualty Insurance Company,
                                    Defendant-Appellant.




                                REVIEW OF A DECISION OF THE COURT OF APPEALS
                                Reported at 340 Wis. 2d 594, 811 N.W.2d 894
                                        (Ct. App. 2012 – Published)
                                           PDC No: 2012 WI App 51

OPINION FILED:            April 5, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            October 4, 2012

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Brown
   JUDGE:                 Donald R. Zuidmulder

JUSTICES:
   CONCURRED:             ABRAHAMSON, C.J., BRADLEY, J., concur (opinion
                          filed).
     CONCUR & DISSENT:    PROSSER, J., concurs in part/dissents in part
                          (Opinion filed).
     NOT PARTICIPATING:


ATTORNEYS:
         For      the     plaintiffs-respondents-petitioners,          there   were
briefs by Ralph J. Tease Jr. and Rhonda L. Lanford, and Habush,
Habush & Rottier, S.C., Green Bay, and oral argument by Mr.
Tease.




         For the defendant-appellant, there were briefs by Michael
P.     Konz     and      Erik    L.   Fuehrer,   and   Gabert,   Williams,   Konz   &
Lawrynk, LLP, Appleton, and oral argument by Mr. Konz.
      An   amicus curiae   brief   was   filed   by   James   Friedman   and
Dustin B. Brown, and Godfrey & Kahn, S.C., Madison, on behalf of
the   Wisconsin   Insurance   Alliance,    and   oral   argument   by    Mr.
Brown.




                                    2
                                                                         2013 WI 29
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2011AP2067
(L.C. No.   2011CV502)

STATE OF WISCONSIN                             :            IN SUPREME COURT

Mary E. Marlowe and Leslie R. Marlowe,

             Plaintiffs-Respondents-Petitioners,
                                                                      FILED
      v.
                                                                  APR 5, 2013
IDS Property Casualty Insurance Company,
                                                                    Diane M. Fremgen
             Defendant-Appellant.                                Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                   Modified and

affirmed and, as modified, cause remanded to the arbitration

panel with instructions.



      ¶1     MICHAEL     J.   GABLEMAN,   J.       We    review      a    published
decision of the court of appeals1 reversing the Brown County

Circuit Court's declaratory judgment2 limiting discovery in an
arbitration proceeding to that allowed by Wis. Stat. § 788.07



      1
       Marlowe v. IDS Property Cas. Ins. Co., 2012 WI App 51, 340
Wis. 2d 594, 811 N.W.2d 894.
      2
          The Honorable Donald R. Zuidmulder presiding.
                                                                         No.   2011AP2067



(2009-10).3       Mary E. Marlowe and Leslie R. Marlowe (the Marlowes)

filed       a   claim    with    their     insurer,          IDS   Property    Casualty

Insurance       Company    (IDS),    for    underinsured           motorist    benefits

after a car accident.             The parties were unable to agree on a

settlement and, pursuant to a provision of the insurance policy,

submitted the dispute to an arbitration panel.                           Prior to the

anticipated arbitration hearing a conflict over discovery arose,4

in which IDS sought broad discovery under Wis. Stat. ch. 804,

the general civil procedure chapter, while the Marlowes refused

to comply with such discovery on the grounds that § 788.07, the

discovery       provision       designed       specifically        for    arbitration,

controlled,        and    permitted        only        the     taking     of    certain

depositions.5       Interpreting the policy's arbitration provision in

light of our decision in Borst v. Allstate Ins. Co., 2006 WI 70,

291 Wis. 2d 361, 717 N.W.2d 42, the arbitration panel decided

        3
       All subsequent references to state and federal statutes
are to the versions in effect in 2010, when the dispute giving
rise to this case began, unless otherwise indicated.
     4
       Due to the conflict               and     the    subsequent       appeals,    the
hearing never took place.
     5
       The differences between Wis. Stat. § 788.07 and Wis. Stat.
ch. 804 are significant. Section 788.07, which pertains only to
arbitration, limits discovery in arbitration to "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."     By contrast, ch. 804, which
applies to civil litigation in the circuit courts, allows for a
wide range of discovery tools, including interrogatories,
production of documents, physical and mental examinations of
parties, inspection of medical documents, and requests for
admissions. See generally ch. 804.

                                           2
                                                                                 No.        2011AP2067



that IDS was entitled to ch. 804 discovery.                                Unsatisfied, the

Marlowes      successfully          filed     for        declaratory       judgment          in   the

circuit      court,     obtaining        an      order        reversing     the       arbitration

panel's determination and directing that arbitration discovery

would proceed within the narrow parameters set by § 788.07.                                       The

court of appeals reversed, concluding that the Marlowes were not

permitted to pursue relief from the circuit court before the

panel rendered a final decision on the award, and that full ch.

804 discovery was available to IDS.

        ¶2      We consider two issues: 1) whether the Marlowes were

permitted        to    seek     a    declaratory               judgment     concerning            the

discovery dispute before the arbitration panel ruled on whether

an award was appropriate and, if so, its amount; and 2) whether

the     panel      properly     established             discovery        procedures          outside

those    outlined       in    Wis.    Stat.        § 788.07.            Because        no    unusual

circumstances justified an interlocutory appeal, we hold that

the Marlowes' action in circuit court was premature.                                    As to the

second question, the legislature has set forth, in the form of
§ 788.07,        a     narrow       scope        of          discovery     for        arbitration

proceedings in the absence of an explicit, specific, and clearly
drafted      arbitration        clause      to         the    contrary.         IDS     failed     to

include      any      such    language        in       its     policy     and    we     therefore
instruct the panel to limit discovery to that provided for in

§ 788.07.        Accordingly, we affirm the court of appeals insofar
as it declined to allow the Marlowes an interlocutory appeal.

However, insofar as the court of appeals granted IDS the benefit

of full Wis. Stat. ch. 804 discovery, we modify its decision and
                                                   3
                                                                                        No.       2011AP2067



instead direct the panel to cabin discovery to the depositions

contemplated        in     § 788.07,             i.e.,       "depositions          to    be        used    as

evidence before the arbitrators."                                Thus, the decision of the

court of appeals is modified, and as modified, affirmed, and the

cause is remanded to the arbitration panel with instructions.

                                                I. BACKGROUND

        ¶3       The relevant facts are few and straightforward.                                            In

2007,    Mary      Marlowe       was        involved         in    a     car    accident           with     an

underinsured        driver.            At       the    time       of    the    accident,           she     was

insured      by     IDS,    under           a     policy         that     contained           a     section

providing underinsured motorist coverage.                                  Within that section,

under      the    heading,           "Arbitration,"              the      policy    provided              that

"[u]nless both parties agree otherwise, arbitration will take

place in the county in which the insured lives.                                     Local rules of

law   as     to    procedure           and       evidence          will       apply."             (Bold    in

original.)         The Marlowes submitted a claim to IDS and, after

fruitless         settlement           discussions,               the     parties         agreed,          in

accordance        with     the       policy,          that    an       arbitration       panel        would
determine        whether        an    award       was      appropriate          and,      if       so,     its

amount.
      ¶4     To prepare for the arbitration hearing, IDS requested

various types of discovery materials, including interrogatories,
the     production         of        documents,            the     procurement           of       medical,

employment, and income tax records, several depositions, and an
independent medical examination.                           As IDS read the policy, it was

entitled to such materials because the "local rules" referred to

in the arbitration provision were located in Wis. Stat. ch. 804,
                                                       4
                                                                               No.          2011AP2067



which       authorizes        each    of    the     aforementioned         discovery          tools.

The Marlowes refused to comply with the request, explaining that

they believed the "local rules" provision was ambiguous, and

consequently          understood       Borst       to       limit   discovery          to   the    far

narrower boundaries drawn in Wis. Stat. § 788.07, a provision

allowing       only     for    "the    taking          of    depositions      to       be   used    as

evidence before the arbitrators."6

       ¶5          After considering the parties' arguments on the issue,

the    arbitration         panel      ruled        in    IDS's      favor,    giving          it   the

benefit of the broad arsenal of discovery devices described in

Wis.        Stat.    ch.   804.        In     the       unanimous      view    of       the     three

arbitrators, "[t]he term 'local rules of procedure[,'] as the

policy employs it, is both clear and informative.                                       It denotes

the civil rules of procedure that govern court proceedings daily

in    local        courtrooms."            After    the      panel    denied       a    motion      to

reconsider,          the   Marlowes         filed       an    action    in     circuit          court

seeking        a    declaration       under        Wisconsin's        Uniform          Declaratory

Judgment Act, Wis. Stat. § 806.04, that they had a legal right

not to be subjected to the expansive discovery of ch. 804.                                         The
circuit court agreed and issued the requested order.                                          At the

        6
       At one point during the clash over the proper scope of
discovery, the Marlowes offered, "in the spirit of attempting to
reach an amicable resolution," to provide, in addition to the
depositions mentioned in Wis. Stat. § 788.07, authorizations for
all of Mary Marlowe's medical records dating back ten years from
the accident, and to make her available for a two hour
deposition. That concession has no bearing on our resolution of
the case, which hinges only on the type of discovery the law
requires, not that which it may allow parties to offer to avoid
unnecessary discord and delay.

                                                   5
                                                               No.    2011AP2067



hearing where it reached its determination, the circuit court

explained     that   IDS    should    have   included     a    more   specific

reference to the discovery it desired in its policy if it wanted

to later take advantage of the breadth of ch. 804.

     ¶6     When the case reached the court of appeals, the tide

returned to IDS's favor.          In its decision, the court of appeals

prohibited the Marlowes from turning to the courts before the

arbitration proceedings were complete.              Marlowe v. IDS Property

Cas. Ins. Co., 2012 WI App 51, ¶¶8-18, 340 Wis. 2d 594, 811

N.W.2d 894.    Despite     that   prohibition,      however,   the    court   of

appeals decided to reach the merits of the discovery dispute and

affirmed both the panel's reading of the policy as well as its

understanding of the panel's authority to shape the scope of

discovery as it saw fit.           Id., ¶¶19-27.      On the first point——

that of the interlocutory appeal——the court of appeals looked

for guidance to federal cases addressing similar issues.                   Id.,

¶¶10-17.     The court of appeals discerned in those cases a rule

that "interlocutory review of arbitration panels' intermediate

decisions"     is    available     only    "under    limited    and    unusual

circumstances."      Id., ¶14.       Seeing no such circumstances in the

Marlowes' case, the court held that the circuit court should

have waited until the panel rendered its final decision before

weighing in on the discovery dispute.          Id., ¶18.

     ¶7      The court of appeals framed the second issue as the

scope of the arbitration panel's authority.                According to the

court, the panel had the "exclusive authority" to interpret the

"local rules" provision because it "arguably refer[red] to the
                                       6
                                                                                       No.     2011AP2067



scope        of       discovery,"          a      procedural        matter       within      the    sole

province of the panel under our opinion in Borst and that of the

court        of       appeals        in        Employers     Ins.        of    Wausau     v.    Certain

Underwriters at Lloyd's London, 202 Wis. 2d 673, 552 N.W.2d 420

(Ct. App. 1996).              Id., ¶27.

        ¶8        The Marlowes petitioned this court for review.                                      In

order to clarify several important features of the arbitration

system       and       its   relationship               to   the    courts,       we    granted     that

petition.

                                      II.        STANDARD OF REVIEW

       ¶9         The first issue before us is whether the Marlowes'

action for a declaratory judgment constituted an interlocutory

appeal and, if so, whether it was permissible.                                         Such an issue

presents          a    purely        legal        question,        and    we    thus     consider     it

independently of the opinions by the circuit court and court of

appeals, though benefitting from their analyses.                                       See generally
State ex rel. Hass v. Wis. Court of Appeals, 2001 WI 128, 248

Wis. 2d 634, 636 N.W.2d 707.

       ¶10        With       respect            to    the      second          issue——whether        the

arbitration panel was entitled to establish discovery procedures

outside those outlined in Wis. Stat. § 788.07——"[t]he scope of

judicial          review        of        an     arbitration        decision       is,"        generally

speaking, "very limited."                            Orlowski v. State Farm Mut. Auto.

Ins.     Co.,         2012    WI      21,        ¶13,    339       Wis. 2d 1,      810       N.W.2d 775

(citation omitted).                   As such, "[t]here is a strong presumption

of   arbitrability              where          the   contract       in    question       contains     an

arbitration clause," and "[a]ny doubts concerning the scope of
                                                        7
                                                                 No.     2011AP2067



arbitrable issues should be resolved in favor of arbitration."

Cirilli v. Country Ins. & Fin. Servs., 2009 WI App 167, ¶14, 322

Wis. 2d 238, 776 N.W.2d 272 (citation omitted).                 Pursuant to the

same deferential standards, an arbitrator's decision concerning

an award will not be overturned unless "perverse misconstruction

or positive misconduct is plainly established, or if there is a

manifest disregard of the law, or if the award itself is illegal

or violates strong public policy."                City of Madison v. Madison

Prof'l Police Officers Ass'n, 144 Wis. 2d 576, 586, 425 N.W.2d 8

(1988)     (internal      quotation      marks,     brackets,    and     citation

omitted).    But where, as here, a dispute implicates the scope of

an arbitration panel's authority concerning discovery, an issue

the legislature has spoken on, the standard of review is less

deferential.        As   we   explain    in   detail   below,   an   arbitration

panel's decision will be reversed when it allows for discovery

different from that granted in § 788.07 unless the agreement

between the parties contains an explicit, specific, and clearly

drafted    clause    adopting    or     spelling   out   a   different    set   of

discovery guidelines.         See generally Borst, 291 Wis. 2d 361.

                                 III. DISCUSSION

     ¶11    We hold as follows.          As no unusual circumstances were

present to justify an interlocutory appeal, the circuit court

erred in declaring the Marlowes' rights on a procedural matter

before the arbitration panel satisfied its responsibilities and

settled the question of compensation.              However, given that there

was no explicit, specific, and clearly drafted agreement in the

policy detailing the discovery procedures to follow, the panel
                                         8
                                                                            No.     2011AP2067



should not have granted IDS the use of Wis. Stat. ch. 804's full

range    of    discovery       mechanisms.        Consequently,          we       return    the

action to the panel with instructions to limit discovery to the

section       enacted     by     the     legislature          for      precisely        these

situations: Wis. Stat. § 788.07.

                            A. The Interlocutory Appeal

        ¶12    We    consider    first       whether    the     Marlowes          improperly

sought interlocutory relief.                 The Marlowes contend that they did

not seek such relief and, if they did, that it was permitted.

Consistent with well-reasoned precedent from other jurisdictions

and with the fundamental and crucial purposes of arbitration, we

find that they did seek interlocutory relief, and that it was

barred.

                    1. The Marlowes Sought Interlocutory Relief

        ¶13    To ascertain whether the Marlowes improperly pursued

interlocutory relief, we must, as a threshold matter, determine

whether       they    pursued   interlocutory          relief    at     all.        Applying

basic principles of appellate procedure, we have no difficulty

in answering that they did.

        ¶14    The Marlowes' argument for why their filing in circuit

court did not represent an interlocutory appeal hinges on their

belief that the arbitration panel was not empowered to order

Wis. Stat. ch. 804 discovery.                 As the Marlowes see it, since the

panel had no authority to issue that order, its order was null

and void ab initio, that is, from the beginning, and the circuit

court    was    not    reviewing       the    order    at    all,     let     alone    on    an

interlocutory         basis.      The    Marlowes'          position    is     founded       on
                                              9
                                                                      No.     2011AP2067



several fundamental misunderstandings of the law, and we cannot

accept it.

     ¶15     First, the Marlowes' premise flows from an untenably

theoretical         and     impractical       characterization         of     judicial

mechanics.         Even if we suspend disbelief and assume with the

Marlowes that an order exceeding an arbitration panel's power

vanishes when the order is questioned in court, that does not

change the fact that the filing in circuit court interrupts an

ongoing proceeding before the panel.                   That is, regardless of

whether the panel's discovery order was null or not, there was

nevertheless        an    arbitration    in    progress   at    the    time    it    was

issued.      It is this fact——not the correctness or validity of the

order——that renders the action interlocutory.                   See, e.g., Brown

v. Argosy Gaming Co., L.P., 360 F.3d 703, 706 (7th Cir. 2004)

(defining     an    interlocutory       action   as   "one     that    merely     gives

pause   to    the    ongoing    proceedings      to   resolve    one    issue       in   a

larger, ongoing dispute . . . .") (Emphasis added.)

     ¶16     In any event, the arbitration panel indisputably had

the authority to issue an order relating to discovery, the only

complaint the Marlowes raise is whether it issued the correct

discovery order.           Throughout the course of this controversy, it

has never been suggested by any party or decision-maker that the

arbitration panel was forbidden from determining the boundaries

of discovery.        Rather, the Marlowes simply assert that the panel

erroneously set those boundaries in accordance with one chapter

of the statutes instead of another.               It follows, then, as amicus

Wisconsin Insurance Alliance helpfully points out, that from the
                                          10
                                                                             No.       2011AP2067



Marlowes' perspective, the panel would have acted within its

jurisdiction if it had ordered discovery in line with Wis. Stat.

§ 788.07 but exceeded its jurisdiction by ordering discovery in

line with Wis. Stat. ch. 804.                  If that were true, a panel would

have jurisdiction only if the outcome happened to turn out to be

right     in    the       judgment     of     the     courts.         That       is     not   how

jurisdiction works.              See, e.g., Gen. Comm. of Adjustment v. Mo.-

Kan.-Tex. R.R Co., 320 U.S. 323, 337 (1943) ("When a court has

jurisdiction         it    has    of   course       authority    to    decide          the    case

either way.") (emphasis added) (citation and internal quotation

marks omitted).             For the foregoing reasons, there can be no

doubt    that    the      circuit      court's       declaration      of     the       Marlowes'

rights granted them interlocutory relief.

        2. Interlocutory Relief Was Not Available to the Marlowes

        ¶17    Having shown why the Marlowes' action in circuit court

was interlocutory, we must now confront the question of whether

they    were    permitted         to   seek    such       relief.      In     view       of   the

important       and    well-established             purposes    of    arbitration,            they

were not so permitted.

       ¶18     We start, as the court of appeals before us did, with

the recognition that this issue is one of first impression in

Wisconsin.       Fortunately, though, it is far from that elsewhere.

In the absence of binding authority construing the Wisconsin

Arbitration Act, we look for guidance to decisions from other

jurisdictions         interpreting          similar       provisions        of        their   own

arbitration acts.            Borst, 291 Wis. 2d 361, ¶30.                  Wisconsin Stat.

§§ 788.10      and    788.11      set forth         the    circumstances         in     which a
                                               11
                                                                          No.      2011AP2067



court can take action on an arbitrator's decision, and thus form

the bases for our inquiry into the availability of interlocutory

relief on an arbitration ruling.                    The same role is performed in

the Federal Arbitration Act by 9 U.S.C. §§ 10 and 11, which

contain nearly identical language to the corresponding Wisconsin

provisions.            We   therefore          consult     the     non-binding          cases

addressing       the    issue       as   persuasive       authority,      and      in    this

instance we find them especially persuasive.

     ¶19     A    number       of    other      jurisdictions          have     held    that

intermediate relief from arbitrators' decisions is not typically

available.            See   Kristen       M.    Blankley,        Did    the     Arbitrator

"Sneeze"?--Do           Federal          Courts       have       Jurisdiction            over

"Interlocutory" Awards in Class Action Arbitrations?, 34 Vt. L.

Rev. 493, 506 (2010) ("The courts, when usually confronted with

non-final awards, claim that they should generally refrain from

intervention and allow arbitration to run its course.").                                These

decisions are based on the sound theory that the courts must

facilitate as much as possible the primary aims of arbitration:

providing a forum to resolve disputes more quickly, efficiently,

and cheaply than courts can.                See Compania Panemena Maritima San

Gerassimo, S.A. v. J.E. Hurley Lumber Co., 244 F.2d 286, 289 (2d

Cir. 1957)(noting           that challenges          to   intermediate        arbitration

decisions "result only in a waste of time, the interruption of

the arbitration proceeding, and encourage delaying tactics in a

proceeding that is supposed to produce a speedy decision.");

Travelers Ins. Co. v. Davis, 490 F.2d 536, 544 (3d Cir. 1974)

(declining       to    allow    an       interlocutory       appeal     of    an    interim
                                               12
                                                                              No.    2011AP2067



arbitration     decision     because             "[p]iecemeal           litigation        would

result").      In    Wisconsin,       as    much       as    in   the    federal      system,

arbitration     is    designed    to       facilitate         the   speedy,         efficient

resolution of disputes without encumbering parties with all of

the expenses and formalities associated with civil litigation in

the courts.      See, e.g., Franke v. Franke, 2004 WI 8, ¶24, 268

Wis. 2d 360, 674 N.W.2d 832 ("[P]ublic policy favors arbitration

as promoting the efficient resolution of disputes, and as giving

the parties what they bargained for, that is, an arbitrator's,

not a court's decision.").             Those advantages accrue not only to

parties but to the circuit courts, which experience a lightening

of their substantial dockets, saving the taxpayers money and

litigants both money and time.                    See, e.g., Balt. & Ohio Chi.
Terminal R.R. Co. v. Wis. Cent. Ltd., 154 F.3d 404, 409 (7th

Cir.   1998)     (Posner,    J.)       (remarking            that       one     purpose     of

arbitration     "is    to   lighten             the    pressure     on        the    courts")

(citation      omitted).         It        is     self-evident           that       any   rule

encouraging parties to shuttle their cases to and from court in

the midst of an arbitration proceeding would substantially slow

down the arbitration process and impose significant costs on the

parties,    thereby     defeating          the        most   central       objectives        of

arbitration.        We therefore adopt the sensible rule followed by

the authorities cited above, and hold that in Wisconsin 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.


                                            13
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      ¶20      Those 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.               For instance, interlocutory appeals have

been entertained when the intermediate ruling could subject the

aggrieved party to irreparable harm, Aerojet-General Corp. v.

Am.   Arbitration         Ass'n,        478     F.2d    248,         251     (9th       Cir.       1973)

(regarding       the      fixing        of    venue),       or       when    such        review      is

necessary to preserve assets pending a final ruling from the

arbitrator on the award.                      Yasuda Fire & Marine Ins. Co. v.
Cont'l Cas. Co., 37 F.3d 345, 347-48 (7th Cir. 1994).                                        Again, we

embrace the unassailable logic underlying these cases, as they

properly balance 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.

      ¶21      The Marlowes do not suggest that the discovery dispute

at    arbitration         was     unusual       in     such      a     way       as     to     justify

intermediate intervention by the circuit court, and we see no

evidence to that effect.                     On the contrary, there has been no

showing     that    the     request           for    limited         discovery          was     either

especially urgent or that it posed the threat of irreparable

injury.        Tellingly,         in    the    only     Wisconsin           case       involving      a

similar discovery dispute, we remanded the cause back to the

arbitration panel after it had allowed overbroad discovery and

issued an award, Borst, 291 Wis. 2d 361, ¶4, thus indicating
                                                14
                                                                            No.    2011AP2067



that such disputes can be effectively resolved within the course

of   the       ordinary      appellate           process,       without     resorting          to

inefficient,         time-consuming            practices       which    defeat     the    very

purpose of arbitration.                  While certainly not dispositive of the

matter,       this    precedent      underscores         why    the    arbitration       panel

here was entitled to fully discharge its duties before being

second-guessed on an intermediate matter by the circuit court.7

As a result, we affirm the court of appeals decision insofar as

it   correctly        held   that        the   Marlowes'       action     for    declaratory

relief constituted an improper interlocutory appeal.

                                B. The Discovery Dispute

        ¶22    Although it seems at first blush incongruous for us to

first       hold     that    the    Marlowes         were    not      permitted     to    seek

interlocutory         relief       and    then       grant   such      relief,    we     do    so

because       the    court     of    appeals         unnecessarily       and     incorrectly

addressed the merits of the discovery dispute before us.                                      The

court of appeals elected to address the discovery dispute while

recognizing that it did not need to reach the question after
holding that an intermediate appeal was barred.                                 Marlowe, 340


        7
       As it is unnecessary to the resolution of this case, we do
not demarcate today the full range of situations in which
intermediate relief may be available to a party challenging an
adverse decision made at arbitration. See State v. Smith, 2012
WI 91, ¶62 n.19, 342 Wis. 2d 710, 817 N.W.2d 410 (reminding
"that the court resolves the facts before it, and does not issue
advisory opinions or address hypothetical facts") (citation
omitted), cert. denied, 568 U.S. __, 133 S. Ct. 635 (2012). We
caution that other circumstances may arise in which such appeals
may be appropriate, and they should be considered on their own
facts, under the same broad principles we enunciate here.

                                                15
                                                                     No.    2011AP2067



Wis. 2d 594, ¶19 n.8.            As we will show, the court of appeals

erred in concluding that the arbitration panel had the exclusive

authority to dictate the discovery procedures to follow, and the

arbitration panel erred           in     ordering     full   Wis.   Stat.    ch.    804

discovery.        Therefore, if we were to limit our review to the

issue of interlocutory relief, we would allow an erroneous rule

to retain the force of law, not only in this case, but in all

others.         Moreover,      further    delay       of   the   issue's     ultimate

resolution would impede even further the efficient disposition

the parties bargained for by agreeing to arbitration.                         Lastly,

we will be required to answer the important question presented

by   the     discovery    dispute      sooner    or    later.       It   would     only

frustrate      judicial     economy    were     we    to   unnecessarily     put   the

question off for another day, particularly when we would thereby

cause       arbitration   in    this     case   to    proceed    under     the   wrong

statute in violation of a clear legislative dictate.                        With that

in mind, we choose to take up the question sooner rather than

later.8

        8
       As the concurrence sees it, our reasoning on this point
"justif[ies] judicial intervention by the circuit court . . . ."
Concurrence, ¶67 (emphasis added).     Phrased differently, the
concurrence believes that the unusual circumstances present here
warranted interlocutory relief at every level of the court
system.   As should be clear from our analysis, though, the
reasons requiring us to reach the discovery dispute——the fact
that the court of appeals erroneously reached and decided the
question, the gross and perverse inefficiency of further delay,
and the inevitability of our ultimate consideration of the
issue——are reasons that apply with special force here, and have
little to no relevance to the circuit court. That court, unlike
our own, was not required to correct an erroneous, published
appellate opinion, because the case had not yet arrived at the
                                          16
                                                                       No.   2011AP2067



      ¶23    As we demonstrate below, a fair reading of the policy,

under our binding and well-reasoned case law, prohibited the

arbitration       panel     from       ordering    full   Wis.       Stat.   ch.    804

discovery.       That same case law allows for judicial correction of

the panel's error.              Accordingly, we instruct the arbitration

panel to limit discovery to that provided for in Wis. Stat.

§ 788.07.

     1. Discovery Should Have Been Limited to Wis. Stat. § 788.07

      ¶24    From the onset of this dispute, the central importance

of   one    decision      has   been     acknowledged     by   all     involved:    our

opinion     in   Borst.         Upon    review    of   that    case,    we   find   its


appellate level and because it would not have been empowered to
do so.     In addition, there was far less of a demand for
expeditiousness in the circuit court's disposition than ours, as
the case had been pending for a significantly shorter period at
that time and was undergoing its first stage of judicial review,
not its third.    Finally, it was not so urgent as a state-wide
matter for the circuit court to resolve the question, as its
opinion bound only the parties and not, like our own, all
Wisconsin contract-drafters, contract-signers, and courts.    See
Raasch v. City of Milwaukee, 2008 WI App 54, ¶8, 310
Wis. 2d 230,   750   N.W.2d 492 (Ct.   App. 2008)    ("[A]lthough
circuit-court opinions may be persuasive because of their
reasoning, they are never       'precedential.'")  (emphasis   in
original) (citation omitted).     To the extent the concurrence
believes that some unique circumstance justified the circuit
court's   interlocutory intervention, we see no persuasive
reasoning to that effect in the concurrence itself, and no
reasoning to justify that result at all in our own discussion,
in the briefs, or in any authority that has been brought to our
attention. The concurrence observes that it is incongruous not
just at first blush, but at "second[] or third blush" to find
judicial relief from the circuit court premature while granting
it here.    Concurrence, ¶67.  That may be, but the concurrence
cannot resolve the incongruity either, no matter how much
blushing it does.

                                           17
                                                                        No.   2011AP2067



application here clear.            If IDS desired to utilize Wis. Stat.

ch. 804 discovery, it was required to expressly, clearly, and

specifically say so in its policy.                       Because it did not, the

panel erred in ordering such discovery and Borst compels us to

correct the error.

                     a) Borst Is Clarified and Reaffirmed

     ¶25    Although we do not share IDS's view that the facts of

Borst are particularly helpful to our decision here, in light of

its unequivocal holding, we briefly recite the relevant details

to provide context and to address IDS's argument.                       In Borst, the

plaintiff    was     injured      in   a    car    accident      with   an    uninsured

motorist and filed a claim for compensation with his insurer,

Allstate    Insurance      Company      (Allstate).           291    Wis. 2d 361,    ¶5.

After settlement negotiations failed, the claim was submitted to

arbitration    pursuant      to    a    provision        in   the    policy   that   was

silent on the question of the scope of discovery.                        Id., ¶8.    In

anticipation of the arbitration hearing, Allstate asked Borst

for answers to written interrogatories, document production, and

medical authorizations.            Id., ¶10.             Borst refused to comply,

instead     filing     a   motion          to    quash     the      discovery.       Id.

Eventually, Borst sued Allstate in circuit court on claims of

breach of contract, bad faith, and fraud and misrepresentation.

Id., ¶12.     Borst also sought a permanent injunction enjoining

further arbitration.         Id.       After the circuit court remanded the

matter back to the arbitrators, the panel allowed Allstate's

requested broad discovery and decided the award, the circuit


                                            18
                                                                            No.     2011AP2067



court    confirmed           that    award,    and    the   court     of    appeals        then

certified the case to this court.

       ¶26    As     for      the     most    important       aspect       of     Borst——its

holding——this           court      unanimously      ruled   in     that    case     that    the

panel erred in permitting extensive discovery and should instead

have    confined        it    to    the    depositions      afforded       in     Wis.   Stat.

§ 788.07.          We    began      our    consideration      of    the    issue     with     a

summary, in a paragraph worth quoting in full for reasons that

will soon be apparent, thusly:

       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 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   [Alternative   Dispute   Resolution]
       provider rules that specify how discovery should be
       handled.

Id., ¶56.
        ¶27        To reach that result, the Borst court first examined

the text of Wis. Stat. § 788.07 and the Wisconsin Arbitration

Act as a whole, concluding that neither mentioned any type of

discovery other than "depositions to be used as evidence before

the arbitrators."               Id., ¶58 (quoting § 788.07).               "To allow for

the amount of discovery Allstate seeks," the court went on, "we

would have to read more into § 788.07 than is present in the

statutory      language,"             an     approach       that     would        transgress

established        rules      of     statutory      construction.          Id.     (citation

omitted).

                                               19
                                                                        No.        2011AP2067



      ¶28   Continuing its analysis, Borst observed that because

arbitration is a matter of contract, the "parties can contract

to allow arbitrators a wide amount of latitude in managing the

arbitration, subject to the constraints of the law."                               Id., ¶59

(citing Employers, 202 Wis. 2d 673).                  Justice Wilcox, speaking

for the court, therefore determined that "absent a contractual

provision specifying how discovery will be handled, the parties

are limited to the discovery procedures provided in" Wis. Stat.

§ 788.07.       Id.      In    support    of     that    conclusion,          the      court
reasoned that a grant of inherent authority to arbitrators to

order broader discovery where the policy is silent on the scope

of discovery "would give us pause as we do not want to turn the

arbitration process into another trial system," with all of its

attendant     formalities and        expenses.          Id.,    ¶¶60,    61.         Stated

differently,        "[a]rbitrators       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."                 Id., ¶63.            "[T]he better

approach,"     we    therefore      concluded,     "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."                   Id., ¶60.           Turning to

the   facts    at     hand,    we   explained     that     "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, discovery will be limited


                                          20
                                                                                   No.     2011AP2067



to depositions as detailed in Wis. Stat. § 788.07."                                        Id., ¶62

(footnote omitted).

        ¶29    Given the overwhelming significance of Borst to the

case at bar, we pause to clarify its holding and reaffirm its

soundness.         Borst was not as precise as it might have been on

what    is    required       of     an    arbitration          clause      in     order        for    the

parties       to      have    access         to     discovery            broader         than        that

contemplated in Wis. Stat. § 788.07.                               To be sure, the opinion

did     use    a     number       of     terms     with       roughly       similar,           if     not

identical,           meanings:           "express,"           "explicitly,"              "specify,"

"clearly      drafted,"       "detail,"           and    so    on.       Yet      as     IDS    fairly

observes, most of these terms are not presented as formulations

of     the     holding,           and     some     are        not     even        formulated           as

requirements.           For       example,       the    Borst       court       indicated           "that
parties       would    be     well-served          to . . . explicitly                 address        the

scope of discovery," id., ¶56 (emphasis added), not that they

had to.        Likewise, the court advised that "the better approach

is    to     leave    it     to    the     parties,       in       the     future,       to     ensure

arbitration agreements are clearly drafted," id., ¶60 (emphasis

added), but stopped short of announcing that inferior approaches

would      necessarily        deprive        parties          of    Wis.     Stat.       ch.        804's

discovery tools.

       ¶30     We need not be detained by such ambiguity long, for we

conclude       that    Borst's           several       formulations          of    the     standard

cohere to form a single holding: for a party in arbitration to

enjoy discovery outside of Wis. Stat. § 788.07, the insurance

policy must provide for it expressly, explicitly, specifically,
                                                  21
                                                                         No.    2011AP2067



and    in     a   clearly      drafted    clause.      To    begin,       the    various

iterations of the standard set forth in Borst are plainly not in

conflict with one another.                 That is to say, a provision may

plainly be express, explicit, specific, and clearly drafted all

at the same time.           More importantly, if an arbitration panel has

no inherent authority to order Wis. Stat. ch. 804 discovery in

the absence of a policy provision to the contrary, and if that

is in part because the legislature has enacted a statute to

address this narrow area of law, it naturally follows that the

discovery provision must be "express," "explicit," "specific,"

and "clearly drafted."9             Without that requirement, as we explain
shortly,      § 788.07      would   lose    all    force,    and    we    cannot treat

legislative commands so cavalierly.                 For purposes of summary and

clarification, everything we said in Borst about how a policy

can    authorize        discovery        broader    than     that    envisioned        by

§ 788.07, whether hortatory or mandatory, is the law: to permit

such       discovery,    the    policy     must    provide    for    it    explicitly,

specifically, and in a clearly drafted clause.10

       9
       Because the words "express" and "explicit" have similar
meanings, and because we believe "explicit" covers the same
ground as "express" and more, in the interest of simplicity we
henceforth omit the word "express" from the standard.    See The
American Heritage Dictionary 626 (5th ed. 2011) (indicating that
"express" is synonymous with "explicit").
       10
       The concurrence/dissent characterizes these requirements
as "tough new conditions" set by today's opinion.       Dissent,
¶114.   They may be tough, but they are certainly not new, as
each word appears in Borst v. Allstate Ins. Co., 2006 WI 70, 291
Wis. 2d 361, 717 N.W.2d 42.    For ease of reference, we will
henceforth refer to the concurrence/dissent as simply "the
dissent."

                                            22
                                                                           No.       2011AP2067



     ¶31    Understood in these terms, the holding of Borst is as

vital today as it was at the time the case was decided.                                      In

short,     arbitration        must     remain           a    speedy,       cost-efficient

alternative    to     conventional      litigation,            not    an   equally       slow,

cumbersome process that simply happens to take place in front of

an arbitration panel rather than a circuit court judge.                                   Id.,

¶60 ("[W]e do not want to turn the arbitration process into

another     trial    system.");        cf.        Franke,      268     Wis. 2d 360,         ¶24

("[P]ublic policy favors arbitration as promoting the efficient

resolution of        disputes,    and as          giving      the    parties     what     they

bargained     for,     that     is,     an        arbitrator's,         not      a    court's

decision.").        With Wis. Stat. ch. 804 discovery, arbitration

proceedings become, quite literally, the mirror image of civil

litigation,     at     least     as     respects            discovery.           As      Borst

recognized,    arbitration        is    a     creature         of     contract,       and    if

parties     desire     to     engage    in        the       same     time-consuming         and

burdensome discovery tactics that lengthen delays and increase

costs in the circuit courts, that is their prerogative.                                     291

Wis. 2d 361, ¶59 ("[P]arties can contract to allow arbitrators a

wide amount of latitude in managing the arbitration . . . .")

(Emphasis added.)           But that is a far cry from an ever-present

legal entitlement to such tactics in a proceeding designed to do

without them.11

     11
       In its ruling on the discovery dispute, the arbitration
panel insisted that, "[if] the purpose of arbitration is to
achieve an    expedited,  efficient  decision   that ultimately
determines the truth, more, not less, preparation for hearing is
the most sensible way to achieve that . . . ." We do not grasp
the panel's reasoning. Certainly an argument could be made that
                                             23
                                                                      No.    2011AP2067



      ¶32    The    second,        and     related,        strain     of     reasoning

underpinning       Borst     is    equally      persuasive     to     us    now:    the

legislature has provided a boundary for the scope of discovery

in arbitration to serve as the default, and, in the absence of

any contractual agreement to the contrary, that boundary should

be   given   effect.         We   fully    agree    with    Borst    that    we    would

insufficiently      respect       our    co-equal   branch     were    we    to    allow

arbitrators to ignore a legislative dictate at will.                        291 Wis.2d

361, ¶58 ("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.").           If    arbitrators      could    order    discovery

outside the confines of § 788.07 whenever they chose, regardless

of what the policy provided, the statute would lose all force,

an outcome we are loath to sanction.                See State ex rel. Kalal v.
Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681

N.W.2d 110    ("It     is,    of    course,     a   solemn    obligation       of   the

judiciary to faithfully give effect to the laws enacted by the

legislature . . . .").             And, as should be evident already, we

believe the legislature's approach to discovery in arbitration

was eminently reasonable, as it is entirely in keeping with the

more expansive discovery better facilitates a search for the
"truth," but we fail to understand how broader discovery could
possibly be regarded as more "expedited" or "efficient."
Similarly, the panel took pains to note that Wis. Stat. ch. 804
does   "not  contemplate   unfettered  discovery,"  but  rather
discovery "that is quick and efficient, [and] cost effective."
That may be, but it surely does contemplate discovery that is
less fettered than that authorized by Wis. Stat. § 788.07, as
well as less quick, less efficient, and less cost effective,
which is exactly the point.

                                           24
                                                                                   No.       2011AP2067



fundamental          goals      of     the        system:        efficient,             inexpensive

resolution of disputes.

        ¶33    There    is     one     other       aspect       of     Borst       that       requires

clarification.          To repeat language we have already quoted, the

Borst    court       remarked        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 [Alternative Dispute Resolution]

provider rules that specify how discovery should be handled."

291 Wis. 2d 361,             ¶56 (emphasis             added).         As    suggested         by our

emphasis,       it     is     important          that    Borst        phrased          this    as     an
either/or      proposition.            That       is,     parties         can     make       available

discovery that differs from the depositions contemplated by Wis.

Stat.     § 788.07          without    necessarily            referring           to     a    set     of

discovery      guidelines           established          elsewhere,          so    long       as     the

parties spell out the discovery guidelines themselves in the

arbitration agreement.                In other words, rather than providing,

say,    that    "Wis.       Stat.     § 788.07         will     govern       all    discovery         in

preparation for the arbitration hearing," a policy could instead

enumerate the types of discovery the parties would have access

to      in     arbitration,            such        as         interrogatories,                medical

examinations,         and     so     on.     However,           if    a     policy       takes      that

approach, it must meet the same standard that applies when an

arbitration          clause     adopts       a     set     of        guidelines         articulated




                                                  25
                                                                          No.     2011AP2067



elsewhere: it must express the types of discovery explicitly,

specifically, and in a clearly drafted clause.12

      ¶34    Before turning to the application of Borst here, one

final      point   must     be    made.          Wisconsin        Stat.     § 788.06(2)

authorizes     arbitrators       and     parties'      representatives           to   issue

subpoenas     under    Wis.      Stat.     § 805.07,        the    general        subpoena

statute in the code of civil procedure.                   In contradistinction to

the dissent,       we do not understand             § 788.06(2)       to        expand   the

scope of arbitration discovery because the provision relates to

the   arbitration     hearing      itself,       not     the   discovery         that    may

precede      it.      The     heading      of      the    statute       confirms         our

interpretation,       as    it    reads,        "Hearings      before      arbitrators;

      12
       The dissent rejects this rule, but it is not clear
exactly why or in favor of what.          In places, the dissent
suggests that Borst was wrongly decided.           Dissent, ¶111
("Borst's interpretation of Wis. Stat. § 788.07 created a
restrictive rule, but that rule disregarded the adjacent
statute . . . .").     Elsewhere, the dissent instead pins the
blame on today's majority, accusing it of injecting a novel
misunderstanding into the law. See, e.g., id., ¶114 (describing
the "explicit, specific, and clearly drafted" test as imposing
"tough new conditions . . . .") (emphasis added); ¶88 ("[T]he
majority   opinion   undercuts   the   contractual  authority   of
arbitrators and creates a serious disincentive for parties to
agree to arbitration.") (Emphasis added.) Both cannot be true.
Although the dissent somewhat ambiguously proposes that the
"court   should    pursue"   the   "options"   of   "clarify[ing],
modif[ying], or distinguish[ing]" Borst "on the facts," dissent,
¶100, the dissent's bottom-line, that the "explicit, specific,
and clearly drafted" test be discarded, is fundamentally
incompatible with Borst's unequivocal holding and its underlying
reasoning. We see no way in which those words and the rationale
behind them can be "clarified, modified, or distinguished" out
of the opinion.     However it chooses to couch the issue, the
dissent would essentially have us overrule Borst, and for the
reasons stated, we decline to do so.

                                           26
                                                                  No.        2011AP2067



procedure."13      (Emphasis added.)          See Pure Milk Prods. Coop. v.

Nat'l Farmers Org., 64 Wis. 2d 241, 253, 219 N.W.2d 564 (1974)

("Although   the    title   is   not    part    of   the    statute     it    may   be

persuasive of the interpretation to be given the statute.").

Presumably, the parties, the arbitration panel, and the court of

appeals   all      acknowledged        this     fact,      as   none     mentioned


     13
        In a passing footnote, the dissent intimates that the
appearance   of  the   word   "Hearings"   in   the  heading  is
inconsequential on account of the semicolon and text that
follow: "Hearings before arbitrators; procedure." Dissent, ¶106
n.7.   According to the dissent, the "Hearings" goes with Wis.
Stat. § 788.06(1), whereas the "procedure" goes with (2).    Id.
In line with that reading, the dissent flatly asserts that
"[t]he procedure applies to more than hearings because of the
references to Wis. Stat. § 805.07."      Id.   But the following
sections are as much about arbitration procedure as are the
subpoena provisions.    See Wis. Stat. § 788.07 (dealing with
depositions in arbitration); Wis. Stat. § 788.08 (requiring that
awards be in writing and signed by a majority of the arbitration
panel); Wis. Stat. § 788.09 (setting forth the procedure for
confirming arbitration awards in court); Wis. Stat. § 788.10
(establishing the mechanisms for vacating awards and obtaining a
rehearing by the arbitrators).   And as the dissent implies, at
least some of § 788.06(2) is unquestionably about hearings,
namely its references to "the circuit court for the county in
which the hearing is held" and to "[w]itnesses and interpreters
attending before an arbitration." (Emphasis added.)       If the
legislature intended to enact two unrelated provisions, one
about hearings and one covering subpoenas with no connection to
hearings, it presumably would have made § 788.06(1) its own
section, and entitled it "Hearings before arbitrators," and
given § 788.06(2) its own section and entitled it "Subpoenas,"
much as it did with the very next section, which is entitled
"Depositions" and discusses, unsurprisingly, depositions.     We
prefer to begin with the assumption that the legislature's
organizational scheme and choice of headings matters, rather
than discounting it out of hand.    See, e.g., State v. Leitner,
2002 WI 77, ¶33, 253 Wis. 2d 449, 646 N.W.2d 341 (reiterating
that the court presumes that the legislature acted carefully in
drafting laws).

                                        27
                                                                          No.    2011AP2067



§ 788.06(2)        or    the    subpoena    power       at     any      stage     of    the

proceedings.14          Borst did not consider § 788.06(2) either, we

assume for the same good reasons, namely, that everyone involved

in the case tacitly recognized that the provision dealt with

hearings, not discovery.15

      ¶35    The    statutory      history       of    Wis.       Stat.      § 788.06(2)

confirms our interpretation of its significance.                            See State v.

Gilbert, 2012 WI 72, ¶16, 342 Wis. 2d 82, 816 N.W.2d 215 ("[A]

review      of   statutory      history     is    part       of    a    plain     meaning

analysis.")      (citation      and    internal       quotation        marks    omitted),

cert. denied, 568 U.S. __, 133 S. Ct. 560 (2012).                               The first

version of the statute appeared in 1931.                     Compare Wis. Stat. ch.

298 (1929) with Wis. Stat. ch. 298 (1931).                        At that time, only

the   arbitrators,        not    the   parties,       were     empowered        to     issue

subpoenas.         See   Wis.    Stat.    § 298.06      (1931).          Moreover,      the

statute contained several indications that the subpoena power

related only to the hearing, not to pre-hearing discovery.                              For

example,     § 298.06      authorized      the    arbitrators          to    "summon     in

writing any person to attend before them or any of them as a


      14
       The circuit court did refer to Wis. Stat. ch. 788's
subpoena powers at several times during the hearing, but chiefly
to make the point that IDS never applied to the panel to use
such powers.
      15
       In its briefs here and in the court of appeals in Borst,
Allstate mentioned Wis. Stat. § 788.06(2) in passing, purely so
as to distinguish the dispute from a federal case addressing the
question of whether arbitration panels are empowered to subpoena
third parties.   Allstate, like IDS, never asked us to construe
§ 788.06(2) as expanding the scope of discovery at arbitration.

                                           28
                                                                          No.    2011AP2067



witness . . . ."           Id.    (Emphasis          added.)       The    statute       also

instructed that subpoenas in arbitration would "be served in the

same    manner     as   subpoenas        to    appear     and    testify       before    the

court."      (Emphasis added.)            Such language strongly reinforces

the view that the subpoena power related to hearings, not to

discovery.

       ¶36   In    1985,    the   arbitration          subpoena       statute,    by    then

renumbered Wis. Stat. § 788.06, took on its current form.                                See

1985 Wis. Act 168, § 1.            The principal substantive change in the

statute was the extension of the subpoena power from solely the

arbitrators to the arbitrators and the parties (through their

representatives).              See       Wis.        Stat.      § 788.06(2)        (1985).

Presumably as part of the effort to modernize, condense, and

clarify      the    statute,      however,          the      language     quoted       above

referring to hearings was removed.                        However, two significant

additions      were     made      that        demonstrate       the     subpoena       power

continued to relate only to hearings.                        First, the statute was

now    entitled,    "Hearings        before        arbitrators;       procedure."        Id.

(Emphasis added.)          Equally importantly, the legislature inserted

the    following      sentence     into       § 788.06(2):       "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 . . . in the same

manner provided for witnesses in circuit court."                          Id. (Emphasis

added.)      It would be peculiar, to say the least, for a discovery

statute to refer to a hearing that might never occur as though

it were inevitable.          See, e.g., Bell Atlantic Corp. v. Twombly,
                                              29
                                                           No.   2011AP2067



550 U.S. 544, 559 (2007) (noting that "the threat of discovery

expense   will   push   cost-conscious   defendants   to    settle    even

anemic cases before reaching those proceedings.").16




     16
       Because Wis. Stat. § 788.06 is unambiguous, we need not
consult any extrinsic sources to ascertain the intent behind it,
such as legislative history. See, e.g., State v. Lamar, 2011 WI
50, ¶23, 334 Wis. 2d 536, 799 N.W.2d 758 ("If the language [of a
statute] is ambiguous, however, we look beyond the language and
examine extrinsic sources of statutory interpretation, such as
the legislative history of the statute.") (citation omitted).
Even if it were accepted, arguendo, that the statute was
ambiguous, however, the legislative history would reaffirm our
reading.   Concededly, the language from the 1931 statute more
directly conveyed the fact that it was limited to hearings than
does the current statute, given that it explicitly cabined the
subpoenas to summons to "any person to attend before [the
arbitrators] . . . as a witness . . . ."     Wis. Stat. § 298.06
(1931) (emphasis added).   By contrast, the current incarnation
of the statute does not so precisely define the proceedings to
which the subpoenas apply.     See § 788.06.    Nevertheless, the
only notes in the sparse legislative materials for 1985 Wis. Act
168, § 1 that shed any light on the purpose of the alterations
focus exclusively on the expansion of the subpoena power to
parties' representatives; they say nothing about an expansion of
the statute from hearings to discovery. See Drafting File, 1985
Wis. Act 168, Judicial Council Note on A.B. 498, Legislative
Reference Bureau, Madison, Wis. ("The revised section permits
arbitration subpoenas to be issued by any arbitrator or by an
attorney for a party who has been delivered blank subpoenas by
an arbitrator.    It conforms arbitration subpoena practice to
that followed in circuit court.") (emphasis added); Drafting
File, 1985 Wis. Act 168, Fiscal Estimate by the Director of
State Courts on A.B. 498, Legislative Reference Bureau, Madison,
Wis. ("This bill would allow arbitration subpoenas to be issued
by any arbitrator or by an attorney for a party who has been
delivered blank subpoenas by an arbitrator.          Presently, a
majority of the arbitrators sitting at the hearing must sign the
summons.") (Emphasis added.) It can only be inferred from this
single-minded focus that the legislature had no desire to expand
subpoenas from the hearing context to that of discovery.

                                  30
                                                                                No.      2011AP2067



        ¶37    There      is   no    cause      to    apply    Wis.       Stat.    § 788.06(2)

here, and there was no cause to do so in Borst.17

        ¶38    For the stated reasons, Borst was rightly decided and

it remains good law.            We now apply it to the present case.

              b) The Policy Did Not Satisfy Borst's Requirements

        ¶39    Reviewing       the    policy         under    the    well-reasoned           Borst

decision, we hold that the arbitration panel erred in ordering

broad discovery when the policy contained no explicit, specific,

and clearly drafted clause making such discovery available.

        ¶40    There are two pertinent passages from the policy.                                As

noted, the one that has been at the crux of this dispute, and

therefore the one on which most of our analysis will focus,

provides that "[l]ocal rules of law as to procedure and evidence

will     apply"      at   arbitration.           Before       we    get    to     that    clause,

however, there is another provision that warrants examination.

That provision indicates that "[a] person seeking any coverage

must:        . . . [c]ooperate           with        [IDS]     in    the        investigation,

settlement or defense of any claim or suit" and "[s]ubmit, as

often as [IDS] reasonably require[s] . . . [t]o physical exams."
IDS    does    not     contend      in   its     brief       here   that     this     provision


        17
       The dissent complains that it "makes little sense" that
Wis. Stat. § 788.06 is confined to hearings.     Dissent, ¶106.
Maybe so, but it was the legislature's decision, not ours, and
we do not sit in judgment of its wisdom. See, e.g., Progressive
Northern Ins. Co. v. Romanshek, 2005 WI 67, ¶60, 281
Wis. 2d 300, 697 N.W.2d 417 ("When acting within constitutional
limitations, the legislature settles and declares the public
policy of a state, and not the court.") (internal quotation
marks and citation omitted).

                                                31
                                                                                         No.     2011AP2067



imposes        a        freestanding              requirement                independent         of      the

arbitration clause that the Marlowes violated by refusing to

engage in full Wis. Stat. ch. 804 discovery.                                             Asked at oral

argument       whether           that       was    his        position,            counsel       for    IDS

responded that such an argument had been made to the arbitration

panel, and that if IDS had sought a medical examination pursuant

to the provision that the Marlowes "would have" refused.                                                  We

decline       to    entertain          an   argument          that       has       not   been    properly

submitted          to    our     consideration,             and    we        decline      to    base     our

ruling on a hypothetical series of events.                                    State v. Smith, 2012
WI   91,      ¶62       n.19,    342    Wis. 2d 710,              817        N.W.2d 410        (reminding

"that the court resolves the facts before it, and does not issue

advisory       opinions          or     address         hypothetical               facts")      (citation

omitted), cert. denied, 568 U.S. __, 133 S. Ct. 635 (2012).

        ¶41    Nevertheless,                for        purposes          of        illuminating          and

clarifying the rule established by Borst, we note that such a

provision          would       not,    even       if    properly         preserved         and    argued,

allow      for          full     Wis.       Stat.           ch.        804        discovery.            Most

significantly,             the    language         gives          no    indication,            either    by

content or context, that it speaks to discovery, let alone to

discovery preceding arbitration.                            Such an omission is even more

fatal juxtaposed with the fact that the policy does contain a

provision          under        the     explicit            heading          of     "Arbitration,"        a

provision          that    says       nothing          about      physical           examinations        or

anything of the sort.                   For a policy to adequately describe the

discovery mechanisms to be used at arbitration it must, at the

very least, indicate in the policy that the mechanisms are in
                                                       32
                                                                  No.   2011AP2067



fact    discovery    mechanisms,      and    that   they    are    meant   to   be

available at arbitration.          Anything short of that plainly does

not qualify as explicit, specific, or clearly drafted, and thus

does not satisfy the Borst standard.18

       ¶42   Moving to the heart of the dispute, we next review the

arbitration clause itself, which provides that "[l]ocal rules of

law as to procedure and evidence will apply."                    The arbitration

panel thought this cursory clause "clear and informative."                      It

is neither, and it consequently does not come remotely close to

satisfying the bar established by Borst.
       ¶43   Beginning with the most obvious point, the sentence

says    nothing     about   discovery       whatsoever,     let    alone     which

discovery    rules    the   drafter    had    in    mind;   it    mentions   only

"procedure and evidence."        Such broad and amorphous terms could

connote any number of things.                Perhaps most problematically,

       18
       "[I]t is imperative" to the dissent "for the majority to
explain why the discovery sought by IDS was not explicitly
authorized" by this language in the policy. Dissent, ¶123. It
is imperative to us as well, and that is why we have explained
it in detail: because IDS is not relying on the language
(something the dissent neglects to mention) and because the
language says nothing about discovery in a policy that
specifically addresses the issue.    The language may represent
"explicit, specific, and clear" guidelines, id., ¶43, but they
are far from "explicit, specific, and clear" guidelines
governing discovery, and that is precisely what the law
requires. See Borst, 291 Wis. 2d 361, ¶62 ("[T]here 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, discovery will be limited
to depositions as detailed in Wis. Stat. § 788.07.") (emphasis
added); ¶63 ("Arbitrators have no inherent authority to dictate
the scope of discovery and absent an express agreement, the
parties are limited to" § 788.07) (emphasis added).

                                       33
                                                                    No.    2011AP2067



they could easily be understood to relate only to the hearing

itself, not to anything that preceded it.                  We begin, therefore,

with the uncontested premise19 that the language in question is

ambiguous.        See   Folkman   v.   Quamme,      2003     WI   116,     ¶13,   264

Wis. 2d 617,      665    N.W.2d 857    ("Insurance         policy    language       is

ambiguous    if   it    is   susceptible     to    more    than   one     reasonable

interpretation.")        (citation     and        internal    quotation          marks

omitted).

     ¶44     The ambiguity is deepened by the fact that the phrase

"local rules of law as to procedure and evidence" does not,

contrary     to   the    assumption    shared        by    both     IDS    and    the

arbitration panel, give any indication that those rules are to

be found in one particular chapter of the statutes rather than

another.     In fact, the phrase gives no indication that the rules

are to be found in the statutes at all.                Quite to the contrary,
"local rules" might easily and plausibly be read as a reference

to the rules of the circuit court of the county in which the

claim is brought, or the local federal district court, both of




     19
       In its brief, IDS repeatedly notes that the Marlowes have
"conceded" that the arbitration clause is ambiguous, and IDS
nowhere asserts that the phrase "local rules" is unambiguous.
Amicus Wisconsin Insurance Alliance likewise suggested at oral
argument that it believes the clause to be ambiguous.         We
therefore assume that it is now undisputed that the clause is
ambiguous.

                                       34
                                                                    No.   2011AP2067



which may promulgate such rules.20                 See, e.g., Drow v. Schwarz,

225   Wis. 2d 362,         ¶16,    592     N.W.2d 623    (1999)     (referring    to

circuit court rules as "local rules"); State ex rel. Mitsubishi

Heavy Indus. Am., Inc. v. Cir. Ct. for Milwaukee Cnty., 2000 WI

16,   ¶37,    233    Wis. 2d 1,          605    N.W.2d 868     (Abrahamson,    C.J.,

concurring) (referring to federal district court rules as "local

rules").     This possibility is especially likely given that we

read the disputed ambiguous provision, as always, within the

context of the policy as a whole.                See, e.g., Wadzinski v. Auto-
Owners     Ins.     Co.,    2012    WI     75,    ¶16,   342    Wis. 2d 311,     818

N.W.2d 819.       Outside the disputed arbitration clause, the policy

twice refers to Wis. Stat. ch. 34421 with specific, formal legal

citations.22      If the drafters intended to refer to ch. 804, they

      20
       In   its  opinion   denying  the   Marlowes'   motion  for
reconsideration, the panel dismissed this possibility because
circuit court rules are meant only to supplement the statutes
and because the Brown County Circuit Court happened not to have
promulgated any rules regarding evidence.     Neither explanation
is persuasive.   A party may well want the benefit of the more
comprehensive set of procedures that court rules, in conjunction
with the statutes they supplement, provide. Moreover, policies
are presumably drafted to cover a wide range of circumstances,
and the fact that this particular dispute wound up in a circuit
court with no local rules concerning evidence is neither here
nor there when it comes to the provision's significance.
      21
       Wisconsin Stat. ch. 344 is a chapter of                         Wisconsin's
Financial Responsibility law concerning vehicles.
      22
       It may be instructive to note that the policy's reference
to Wis. Stat. ch. 344 is a good example of an explicit,
specific, and clearly drafted arbitration clause within the
meaning of Borst.    Had the policy referred to ch. 804 in a
similar fashion, there would be no question that IDS was
entitled to employ the discovery devices described in the
chapter.

                                           35
                                                    No.     2011AP2067



obviously knew how to use similarly clear and comprehensible

language, rather than the opaque phrase, "local rules."23

     ¶45   Even if we take the considerable leap IDS asks of us

and accept, for the sake of argument, that "local rules" refers

to the Wisconsin statutes, we are still left with an even more

difficult and even more important question, the question that

lies at the root of this entire case: which statute?        There is


     23
       Without citation or explanation, the dissent posits that
"it is not plausible that the" parties "intended to mean that
arbitrators are bound by rules of procedure and evidence
established by the circuit courts——county by county——but need
not follow the procedural and evidentiary rules embodied in
state law."   Dissent, ¶130.   There are two problems with this
argument.   First, it proposes a choice that does not exist.
Circuit court rules cannot conflict with state law, see, e.g.,
Hefty v. Strickhouser, 2008 WI 96, ¶46, 312 Wis. 2d 530, 752
N.W.2d 820, and there is no contention here that anyone is free
to disregard the Wisconsin statutes. Second, we do not find it
so implausible that a policy might adopt local court rules
concerning arbitration discovery.   Implausibility may be partly
in the eye of the beholder, but if such a tack is implausible,
there are at least a few parties around the country behaving
implausibly. See, e.g., Dan Ryan Builders, Inc. v. Nelson, 737
S.E.2d 550, 553 n.1 (W. Va. 2012) (quoting an arbitration clause
that included the provision that "[e]ach party shall be entitled
to full discovery in accordance with the local rules of court in
the event that arbitration is invoked . . . .") (emphasis
added); Shainin II, LLC v. Allen, No. C06-420P, unpublished slip
op., 2006 WL 2473495, at *8 (W.D. Wash. Aug. 28, 2006) (making
reference to arbitration agreements that "provide for discovery
'as provided by the United States Federal Rules of Civil
Procedure as modified by the Local Rules for the Western
District of Washington.'") (quoting the agreements); Sprint
Commc'ns Co. L.P. v. Mushahada Int'l USA, Inc., No. Civ.A. 05-
2168-KHV, unpublished slip op., 2005 WL 1842845, at *1 (D. Kan.
July 29, 2005) (paraphrasing an agreement which provided "that
in the event a dispute under the agreement is submitted to
arbitration . . . , any discovery would be governed by the local
rules of the District of Kansas.").

                               36
                                                                          No.   2011AP2067



nothing    in   the    clause    at    issue       even      intimating     that   "local

rules" means Wis. Stat. ch. 804 and not Wis. Stat. § 788.07.                           It

is axiomatic that where a more specific law on a given subject

is potentially in conflict with a more general one on the same

subject, the former controls.                 See, e.g., Pruitt v. State, 16

Wis. 2d 169, 173, 114 N.W.2d 148 (1962).                         Although this case

presents a somewhat atypical example of that rule (because we do

not have a statutory conflict so much as uncertainty as to which

of two consistent statutes apply), we believe the canon still

cuts against IDS's interpretation.                     Chapter 804 applies to all

civil litigation in the Wisconsin courts.                       By contrast, ch. 788

applies    to   arbitration       only.           In   the    literal     sense,    then,

§ 788.07 is the local rule as respects discovery in arbitration
proceedings, if the "locality" is considered the entire state,

as IDS itself contends.24

     ¶46    Resisting      that       conclusion,         the       arbitration     panel

wrote, in its ruling on the motion for reconsideration, that

"[t]he    few   courts    which       have    interpreted           the   phrase   [i.e.,

"local    rules   of     law    as    to     procedure        and    evidence,"]     have


     24
       In its denial of the Marlowes' motion to reconsider, the
arbitration panel discounted the suggestion that "local rules"
could signify Wis. Stat. § 788.07 because that statute "is
certainly no more a 'local rule' than [Wis. Stat. ch.] 804 is."
We could not agree more with the premise, but we do not see how
the panel used it to draw its conclusion.         If Borst means
anything, it means that there is a presumption in favor of
§ 788.07.   For reasons it did not articulate, the arbitration
panel appeared to apply the opposite presumption. The question
is whether Wis. Stat. ch. 804 is "any more a 'local rule'" than
§ 788.07, not vice versa, and the answer is indisputably no.

                                             37
                                                                      No.    2011AP2067



suggested, as this panel has, that it means the rules of civil

procedure as applied in state courts."                    In support, the panel

cited five cases, none of which are apposite.                        Beginning with

the citation least helpful to the panel's position, Workman v.

Superior          Court     reaches   the     opposite    conclusion        from    the

arbitrators here, holding that an arbitration clause providing

that "local rules of law as to procedure and evidence" would

apply did not require compliance with the state's code of civil

procedure.           176 Cal. App. 3d 493, 501 n.3 (Ct. App. 1986).

Three        of   the     remaining   cases   relied     upon   by   the    panel    to

interpret the phrase "local rules" are distinguishable from the

present matter, as those cases examined only the phrase so as to

resolve disputes concerning choice of law or forum.                          They did

not even purport to determine whether a court statute prevailed

over an arbitration statute.                See Miller v. Allstate Ins. Co.,

763 A.2d 401, 403 (Pa. Super. Ct. 2000); Costello v. Liberty

Mut. Fire Ins. Co., 876 N.E.2d 115, 120-21 (Ill. App. 2007);

Brown v. Great N. Ins. Co., No. Civ.A. 3:05-CV-1791, 2006 WL

538186, unpublished slip op. at *1-2 (M.D. Pa. Mar. 2, 2006).25

     ¶47          The only Wisconsin precedent cited by the arbitration

panel is just as easily distinguishable.                  As the arbitrators saw

it, Lukowski v. Dankert, 184 Wis. 2d 142, 515 N.W.2d 883 (1994)


        25
       Brown does make a passing reference to "state procedural
rules" in two cursory sentences that include no analysis or
citations, and does not, at any rate, say anything about
favoring trial procedure over arbitration procedure.   Brown v.
Great N. Ins. Co., No. Civ.A. 3:05-CV-1791, 2006 WL 538186,
unpublished slip op. at *1-2 (M.D. Pa. Mar. 2, 2006).

                                            38
                                                                      No.     2011AP2067



confirmed that "Wisconsin procedural rules" should be applied in

circumstances like these.            At the risk of repeating ourselves,

Wis. Stat. § 788.07 is a Wisconsin procedural rule, as evidenced

by the fact that it is found in the same code as Wis. Stat. ch.

804.        Additionally, Lukowski made only one statement regarding

"local      rules    of law,"     namely,   that     it   created     "a    legitimate

expectation that the governing law would be followed and applied

properly."          Id. at 152 (footnote omitted).             In finding that the

panel acted within its discretion, the Lukowski court did not

suggest that there was any dispute between the parties as to

what    the    governing    law    was,    the   issue    at    the   heart    of   the

present matter.           We have no quarrel with this uncontroversial

statement by Lukowski but it is, like all of the cases cited by

the panel, off-point.26             To summarize, none of the decisions

relied       upon    by   the   panel     involved    a    statute     designed      to


       26
        We are uncertain as to what significance the dissent
ascribes to Lukowski v. Dankert, 184 Wis. 2d 142, 515 N.W.2d 883
(1994).   It includes a fairly lengthy exposition of the case,
but places it in a section denominated "Factual Background."
Dissent, ¶¶84-87.     Like the arbitration panel, the dissent
emphasizes that the Lukowski court interpreted the phrase "local
rules of law as to procedure and evidence" as a reference to
Wisconsin law.   Id., ¶85 ("All parties in Lukowski interpreted
this language to refer to Wisconsin law.") (emphasis in
original); id., ¶86 ("The governing law on procedure and
evidence was deemed to be Wisconsin law in statutes and
cases."). We do not disagree, but cannot perceive the relevance
of this fact. As in Lukowski, it is obvious that Wisconsin law
governs the instant matter.    That gets us nowhere, however, as
the real question is which Wisconsin law. Lukowski happened to
involve the same few words in an arbitration contract, but it
did not consider any remotely similar legal question and
consequently does not assist our inquiry here.

                                          39
                                                                       No.    2011AP2067



delineate    the    discovery       procedures     available      at    arbitration.

Deference to the legislature was consequently not a factor in

those cases, and it is a factor we cannot dismiss out of hand

here in light of § 788.07's clear directive.

     ¶48    Lastly, we consider all of the above with reference to

another well-established rule of contract law, that ambiguities

are resolved       against    the    drafter.       See,   e.g.,       Hirschhorn    v.

Auto-Owners    Ins.    Co.,    2012 WI 20,         ¶23,    338    Wis. 2d 761,       809

N.W.2d 529 ("[A]mbiguities           are    construed      against      the   insurer,

the drafter of the policy.") (citations omitted).                      That rule has

particular     force   here,        as    Borst    specifically        requires      the

drafter to use care in making clear its intention to resort to

arbitration discovery more expansive than that provided in Wis.

Stat. § 788.07.

     ¶49     In light of the foregoing, it cannot be said that the

"local rules" provision was an explicit, specific, and clearly

drafted    reference    to    Wis.       Stat.    ch.   804,     or    to    any   other

discovery rules, as required by Borst.                  The clause was none of




                                           40
                                                                    No.   2011AP2067



those things.27      The panel erred in ruling to the contrary, and

should instead have limited discovery to the confines of Wis.

Stat. § 788.07.

2) The Arbitration Panel Did Not Have the Exclusive Authority To

                    Determine the Discovery Procedure

      ¶50    The   court   of    appeals       held   that    the   "local   rules"

provision "arguably refers to the scope of discovery," Marlowe,

340   Wis. 2d 594,    ¶27,      thereby    endowing     the    arbitration    panel

with the "exclusive authority," id., ¶22, to control discovery,
free from any judicial review.             To justify that conclusion, the

court of appeals misconstrued our precedent, and we therefore

hold that the panel did not have the sole power to regulate

discovery.

      ¶51    As with the preceding issue, our examination of the

arbitration panel's authority vis-à-vis the courts centers on

Borst.      The court of appeals discerned in Borst the proposition

that the construction of an arbitration provision that "arguably

      27
       At oral argument, counsel for amicus Wisconsin Insurance
Alliance suggested that "express," as used in Borst, "doesn't
mean that it's not ambiguous, it means that there is some
language, direct language in the contract . . . that addresses
this issue."   If that were true, the word would have no real
meaning.   "Express" has a far stronger connotation: "directly
and distinctly stated or expressed rather than implied or left
to inference: not dubious or ambiguous."   Webster's Third New
International Dictionary 803 (2002) (emphasis added).        Of
course, the "local rules" provision was by no stretch of the
imagination "directly and distinctly stated," at least not in
any sense relating to its supposed reference to Wis. Stat. ch.
804. Thus, even under the narrowest reading of Borst's holding,
the policy would not suffice to entitle IDS to ch. 804
discovery.

                                          41
                                                                            No.   2011AP2067



refers to the           scope    of     discovery"     lies   within    the       exclusive

province of the panel.                 Marlowe, 340 Wis. 2d 594, ¶27.                   Borst

said no such thing.             The policy at issue there was "silent as to

the terms of discovery."                 Borst, 291 Wis. 2d 361, ¶53.              Neither

the     word    "arguably"        nor    any     other    synonym     appears       in    the

decision.          The       Borst      court    declared,     emphatically,            "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."     Id., ¶56 (emphasis added).                  The court of appeals turned

that clear directive on its head in this case by creating a rule

that an ambiguous policy that arguably demonstrates an agreement

to go outside of Wis. Stat. § 788.07 insulates the panel's order

from judicial review.             For reasons we have already surveyed, the

Borst rule is a sensible one and, at any rate, it is not for the

court of appeals to insert a qualification into our decision

that we did not place there ourselves.

      ¶52      Part of the court of appeals' confusion on this point

stemmed     from       its     reading    of    Employers.       In    that       case,    an

arbitration agreement provided that each party was to "'submit

its     case'     to     the     arbitrators         within   thirty     days      of     the

arbitrators'       appointment."                Employers,    202     Wis. 2d at         684.

After     the     thirty        days     elapsed,        Employers     sought      further

discovery, which the panel declined to grant.                          When the matter

reached     it,    the       court of     appeals     considered      the     question     of

whether "submit its case" meant "submit all factual materials

and arguments" or just "submit all arguments."                         As the court of
                                                42
                                                                               No.    2011AP2067



appeals read          the     agreement,      if    the    phrase    "submit         its case"

signified "submit all arguments," the panel would have enjoyed

the discretion to allow discovery after the lapsing of the 30-

day deadline.              In a passage that caught the attention of the

court of appeals in this case, the Employers court wrote:

     Because the language in the agreement is vague and
     indefinite as to exactly what procedures should be
     used to arrive at that determination, it is within the
     province of the arbitration panel, as the interpreter
     of the contract language, to devise such procedures as
     it considers necessary to reach a decision, as long as
     those procedures are compatible with the contract
     language and do not violate the law.

Id. at 686.
        ¶53    In the present matter, the court of appeals collapsed

the quoted          rule     from    Employers      with    the    rule    articulated        in

Borst, holding that "under Borst and Employers, the panel was

entitled      to interpret           the    phrase    and    determine         the    scope   of

discovery it allowed."                Marlowe, 340 Wis. 2d 594, ¶27 (emphasis

added).       Borst and Employers, however, set forth very different

rules, almost diametrically opposed rules, and only one applies

here.         We    resolved        the    question   implicated          by    the    dispute

between the Marlowes and IDS in Borst.                       That question was, in a

nutshell, what does a policy need to say in order to allow for

discovery          outside    of     Wis.    Stat.    § 788.07?           The    answer,      we

repeat, is: an explicit, specific, and clearly drafted reference

to another set of discovery guidelines.                           When such language is

not included in the policy, we made clear in Borst, the courts

have not just the option, but the duty to correct a panel that


                                               43
                                                                                 No.        2011AP2067



refuses to apply the statute, lest the judiciary neglects its

responsibility            to      enforce         the     duly-enacted           laws       of     the

legislature.

       ¶54         Employers      answered        a     different,          narrower       question,

and    with        substantially         different            facts     before       it:     can    an

arbitration         panel       extend      the    time        for    submissions          when    the

contract is ambiguous on the subject?                               Crucially, the court of

appeals       in    Employers         was   not       addressing        an     issue       that    the

legislature had already addressed, so there was no default rule

to    apply    in     the      case    of    ambiguity.               The    court     of    appeals

therefore      properly         resorted      to        the    more    deferential          standard

that    governs       judicial        review       of     arbitration          rulings       in    the

absence of any legislation on point.                                Equally importantly, the

arbitration clause under review in Employers informed the panel

that    it    was     "relieved        of    all        judicial       formalities          and    may

abstain from following the strict rules of law," a factor the

court emphasized in its opinion.                         Id. at 686 ("Given the broad

power the clause gives to the panel in controlling procedure, we

will    defer        to     its    interpretation               of     an     ambiguous       phrase

regulating procedure.") (Emphasis added.)

       ¶55     Seen in this light, the Employers court correctly fell

back on the general principle that an arbitration panel should

have    exclusive           authority        to         dictate       procedure        where       the

arbitration clause allows it to and where the legislature has

provided no on-point default rule.                            See, e.g., City of Madison,

144    Wis. 2d at         586     (holding        that        the    courts    will     uphold      an

arbitrator's decision on whether an award is warranted, and if
                                                  44
                                                                              No.    2011AP2067



so, its size, unless "there is a manifest disregard of the law,

or if the award itself is illegal or violates strong public

policy.").        Notwithstanding the dissent's protestations to the

contrary,       the     panel      here    had      no    such    luxury.            For     the

arbitration clause under consideration, far from relieving the

panel of "judicial formalities and . . . strict rules of law,"

required    the       panel   to    apply     such       rules,   it       simply    did     not

specify which rules.              Furthermore, the legislature has addressed

the type of discovery procedure to be employed in arbitration

proceedings       and    we     must   defer      to     its   choice.         Simply       put,

Employers answered a different question, under different facts,

and with far different legal considerations being brought to

bear.     Both Borst and Employers were rightly decided, and there

is no tension between them.                  Borst controls this case, and it

requires us to instruct the panel to apply Wis. Stat. § 788.07,

as the legislature has directed.

     ¶56     Following        a    similar     path      to    that    of    the     court    of

appeals, the dissent takes exception to our treatment of the

panel's decision, opining that we "misstate[]" the standard of

review and accord its ruling insufficient deference.                                 Dissent,

¶¶124-132.       To the dissent, the more deferential Employers-type

standard    applies,      and      under     that      standard       we    "would    be    hard

pressed    to    argue    that      there    is     no    reasonable        basis     for    the

panel's construction of the" policy.                      Id., ¶130.          For starters,

the question under the approach advocated by the dissent would

not be whether there was a "reasonable basis for the panel's

construction," it would be the far narrower and more restrictive
                                             45
                                                                        No.     2011AP2067



question of whether it constituted a "perverse misconstruction."

Id., ¶133.        It is true, as the dissent maintains, that the

answer would be negative, and that proves our point.                            Borst did

not mention, let alone employ, the "perverse misconstruction"

test.     Instead, Borst taught, by example, that an arbitration

panel can order full Wis. Stat. ch. 804 discovery only when the

agreement contains an explicit, specific, and clearly drafted

clause allowing for such discovery, and that courts will reverse

where   they      disagree    after    exercising           their    own    independent

judgment.       291 Wis. 2d 361, ¶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, discovery will be limited

to depositions as detailed in Wis. Stat. § 788.07.") (footnote

omitted).

      ¶57   Imaginatively,       the        dissent        endeavors       to   tie      its

recommended standard of review to Borst itself, declaring that
it is proper "because Borst permits the scope of discovery to be

set out in the contract."             Dissent, ¶128.            Borst did permit as

much, but it also reversed a panel for ordering full discovery

while   paying     no     deference    to    the     panel's        ruling.         In   the

pertinent section of its analysis, the Borst court did not even

mention     the    panel's    reasoning.             291    Wis. 2d 361,         ¶¶53-62.

Although Borst declared the contract "silent as to the terms of

discovery," it was debated in the briefs, the certification, and

the   supreme     court    decision    itself        as    to   whether       the   policy

incorporated       rules     drawn    up        by   the     American       Arbitration
                                           46
                                                                          No.     2011AP2067



Association     ("AAA"),    which       arguably      would    have       provided       some

parameters for discovery.               Id., ¶62 n.10.         Notably, Borst did

not     discuss     whether        it    might     have       been        a     "perverse

misconstruction" or a "manifest disregard of the law" for the

panel to rely on the AAA rules, but rather said that "there were

no set provisions in the insurance contract that detailed the

terms    of   the   discovery      in   the    arbitration"         and    that    it    was

"unclear which set of arbitration rules promulgated by the AAA

would be applicable."         Id., ¶62 & n.10 (emphases added).                         These

are     not   the   words     of    a     court    looking         for     a    "perverse

misconstruction" or a "manifest disregard of the law."                            They are

the words of a court doing exactly what it purports to be doing:

evaluating, for itself, whether a policy contains an explicit,

specific, and clearly drafted discovery clause.

      ¶58     Perhaps most to the point, if Borst really did share

the dissent's view of the law, it would have said something

about how a panel is largely insulated from judicial review in

fashioning discovery so long as the policy contains a provision

arguably on point, but enjoys no such insulation when the policy

is silent.      It would have been wholly unnecessary to set a bar

for how a policy should address discovery.                         What is more, it

would be especially odd to set that bar with reference to its

own     judicial    analysis,      rather      than    with        reference       to    the

arbitration     panels   that      supposedly      enjoy      an    almost      unlimited

freedom to interpret discovery clauses as they see fit.                             Surely

the seven members of the Borst court would have foreseen that

their    opinion    would   be     taken      at   face    value,         and   that     the
                                          47
                                                                        No.     2011AP2067



Wisconsin courts, our own included, would obey its instructions,

which     offer       no    inkling     that       they    are   directed       only    at

arbitration       panels      and     not    also     at   the   judiciary.         Those

instructions are to look for explicit, specific, and clearly

drafted discovery clauses, and we follow them today.                          As before,

the dissent's critique of our standard of review is in reality a

call to overrule Borst, using one element of the decision, taken

out of context, as a reason to eviscerate the rest of it.                              We

are not persuaded by the call, and do not overrule Borst, either
explicitly or, as the dissent requests, sub silentio.

        ¶59    As a final point, it warrants mention that Borst's

requirement is far from onerous and that there is no reason to

fear the dissent's dark warnings about the dire consequences to

arbitration let loose by our decision.                       Dissent, ¶88 ("[T]he

majority       opinion       undercuts        the     contractual       authority       of

arbitrators and creates a serious disincentive for parties to

agree    to    arbitration.");         ¶123    (under      the   majority      decision,

"insurers       will       face   a   powerful        disincentive      to    agree     to

arbitration, and the arbitration of contractual disputes will

suffer a major setback.").                  Had IDS wanted the benefit of Wis.

Stat.    ch.    804    discovery,      it     could    simply    have   said,    in    the

policy it drafted, "discovery will be governed by Wis. Stat. ch.




                                              48
                                                               No.     2011AP2067



804," or any number of equally clear and concise alternatives.28

Unlike the dissent, we do not believe contract-drafters are so

unskilled in their craft that the demand for these nine simple

words or other equally straightforward formulations poses any

danger of "supersed[ing] the parties' intentions."               Id., ¶114.29

Borst placed IDS, along with all other Wisconsin insurers, on

notice    that   ambiguous    provisions    would   not   suffice    to    grant

recourse to expansive ch. 804 discovery.             Such a modest demand

for clarity is not too much to ask when the legislature has

unequivocally     expressed    its   own   reasonable     preference      on   the

matter.

                               IV.    CONCLUSION

     28
       At the hearing where it announced its ruling, the circuit
court opined that the Marlowes would "be in the mud if [the
arbitration clause] said local discovery rules," rather than
just "local rules of law as to procedure and evidence."
(Emphasis added).   We respectfully disagree.   As stated, Wis.
Stat. § 788.07 is as much a "local discovery rule" as Wis. Stat.
ch. 804.    Indeed, it is more of a local discovery rule as
respects arbitration than ch. 804, which says nothing about
arbitration.    The phrase "local discovery rules" would have
suffered from the same fatal ambiguity as the phrase IDS
selected.
     29
        If the call we first issued in Borst and now reiterate
today——for clear statements about the scope of discovery in
arbitration agreements——does in fact have an adverse impact on
the ability of an insurer to resolve disputes in arbitration, as
the dissent worries, one can only conclude that it is because
the insured is hesitant to consent to the type of discovery
desired by the insurance company.   And if that is the case, it
would not be so regrettable as the dissent alleges for fewer
claims to be arbitrated, as the reduction would simply reflect a
greater   number of parties knowledgeably      exercising  their
independent bargaining power, a change we should welcome, not
dread.

                                      49
                                                                                No.        2011AP2067



        ¶60     We consider two issues: 1) whether the Marlowes were

permitted        to     seek     a    declaratory             judgment     concerning            the

discovery dispute before the arbitration panel ruled on whether

an award was appropriate and, if so, its amount; and 2) whether

the     panel       properly     established            discovery      procedures           outside

those    outlined       in     Wis.   Stat.        § 788.07.           Because        no    unusual

circumstances justified an interlocutory appeal, we hold that

the Marlowes' action in circuit court was premature.                                   As to the

second question, the legislature has set forth, in the form of

§ 788.07,        a     narrow        scope        of     discovery        for        arbitration

proceedings in the absence of an explicit, specific, and clearly

drafted       arbitration       clause       to    the       contrary.         IDS     failed     to

include       any     such     language      in        its    policy     and    we     therefore

instruct the panel to limit discovery to that provided for in

§ 788.07.        Accordingly, we affirm the court of appeals insofar

as it declined to allow the Marlowes an interlocutory appeal.

However, insofar as the court of appeals granted IDS the benefit

of full Wis. Stat. ch. 804 discovery, we modify its decision and
instead direct the panel to cabin discovery to the depositions

contemplated in § 788.07.                 Thus, the decision of the court of
appeals is modified, and as modified, affirmed, and the cause is

remanded to the arbitration panel with instructions.
      By      the     Court.—The      decision          of   the   court       of     appeals     is

modified and affirmed, and, as modified, the cause is remanded
to the arbitration panel with instructions.




                                                  50
     No.   2011AP2067




51
                                                                      No.   2011AP2067.ssa


       ¶61   SHIRLEY S. ABRAHAMSON, C.J.                  (concurring).           I agree

with the majority opinion's conclusion that Wis. Stat. § 788.07

sets    forth      a    narrow       scope    of    discovery         for     arbitration

proceedings in the absence of an explicit, specific, and clearly

drafted arbitration clause to the contrary.

       ¶62   I also agree with the majority opinion's conclusion

that parties to an arbitration can seek judicial intervention

prior to the arbitrators' rendering an award only under special

circumstances.            These      special       circumstances        are     variously

described in the majority opinion as "unusual circumstances,"

"compelling        reason(s),"         circumstances           that     "subject      the

aggrieved    party       to   irreparable        harm,"   "urgent      or     potentially

irreparably     prejudicial           matters      that    demand       the     immediate

attention of the courts," "especially urgent" circumstances, and

circumstances          that   pose      a    "threat      of    irreparable        harm."

Majority op., ¶¶2, 20, 21, 60.

       ¶63   The majority then applies this rule to the present

case and     concludes        that    the    Marlowes'    action       in   the   circuit

court (and here) was premature because "no unusual circumstances

justified an interlocutory appeal."                  Majority op., ¶¶2, 11, 22,

60.

       ¶64   Indeed, the majority goes so far as to say that the

Marlowes     did       not    suggest       that    the    discovery        dispute    at

arbitration was unusual in such a way as to justify intermediate

intervention by the circuit court.                   Majority op., ¶21.            On the

contrary, the Marlowes made the logical and convincing argument

that the arbitration panel's erroneous grant of broad discovery

                                             1
                                                                     No.    2011AP2067.ssa


subjected    them    to     the   full-blown,         time-consuming         and     costly

burdens of litigation without the benefit of a jury trial and

without an adequate remedy.

      ¶65    The    majority       decides       at   ¶21     that    the      Marlowes'

judicial action is premature.              As a matter of logic, the opinion

should end there.           Surprisingly, it does not.                It goes on for

another     39    paragraphs      grappling       with    numerous         issues,    some

briefed and some not briefed.

      ¶66   The      majority       opinion's         reasoning       is      internally

inconsistent.       Or, as the majority opinion prefers to put it, it

"seems at first blush incongruous" to hold that Marlowe's court

action is premature and no relief should be granted and then to

give Marlowe the relief requested.                Majority op., ¶22.

      ¶67   The inconsistency, or if you prefer, the "incongruity

at   first,"      second,    or    third    blush,       is   evident       because    the

reasons     the     majority       uses     to    justify      its      deciding       the

substantive discovery issue also justify judicial intervention

by the circuit court according to the rule set forth in the

majority    opinion:      the     case    presents       "special     circumstances,"

"unusual or especially urgent                circumstances,"         and    "compelling

reasons."

      ¶68   And what are the special, unusual or especially urgent

circumstances       or    compelling       reasons     the    majority        gives    for

deciding the substantive issue in this premature action?                           To use

the majority opinion's own words, if we did not decide this

issue,

      we would allow an erroneous rule to retain the force
      of law, not only in this case, but in all others.
                                2
                                                                              No.    2011AP2067.ssa

        Moreover, further delay of the issue's ultimate
        resolution would impede even further the efficient
        disposition the parties bargained for by agreeing to
        arbitration.   Lastly, we will be required to answer
        the important question presented by the discovery
        dispute sooner or later.     It would only frustrate
        judicial economy were we to unnecessarily put the
        question off for another day, particularly when we
        would thereby cause arbitration in this case to
        proceed under the wrong statute in violation of a
        clear legislative dictate.
Majority op., ¶22 (emphasis added).

        ¶69    Prohibiting         the       Marlowes       from       obtaining          immediate

judicial        intervention           at    the       circuit        court    on     a      clearly

erroneous arbitration decision relating to discovery, to use the

words of the majority opinion, "would allow an erroneous rule"

to have the force of law in the Marlowes' case; would cause

"further       delay       of    the    issue's         ultimate       resolution";          "would

impede        even    further      the       efficient          disposition         the      parties

bargained       for       by    agreeing      to       arbitration";         "would       frustrate

judicial economy"; and would "cause arbitration . . . to proceed

under    the       wrong statute in           violation          of    a    clear    legislative

dictate."          Furthermore, the circuit court "will be required to
answer the important question presented by the discovery dispute

sooner or later."              Majority op., ¶22.
     ¶70       For the very reasoning and analysis set forth in the

majority opinion, I conclude that the Marlowe matter presents
special        circumstances           and    that        the     adjudication            was     not

premature at the circuit court or here.
     ¶71       For the reasons set forth, I write separately.

     ¶72       I     am    authorized        to    state        that       Justice     ANN      WALSH
BRADLEY joins this opinion.

                                                   3
                                                                     No.   2011AP2067.dtp



       ¶73     DAVID T. PROSSER, J.             (concurring in part, dissenting

in part).           The court of appeals reversed the circuit court,

concluding that a party in an arbitration "generally may not

seek immediate circuit court review of an arbitration panel's

intermediate          decision.         Instead,     the    party    must     wait     and

challenge that decision by seeking to vacate the panel's final

award, pursuant to Wis. Stat. § 788.10."1                    The majority opinion

affirms      this     determination,      and    I   join    that    portion    of     the
majority opinion that discusses the issue under the heading "The

Interlocutory Appeal."

       ¶74     The court of appeals also reversed the circuit court

by     approving       the    arbitration       panel's     interpretation        of    a

sentence in the arbitration provision of an insurance contract

that       arguably    related     to    discovery.         The     majority    opinion

rejects       this     part   of   the     court     of    appeals     determination.

Although I do not necessarily agree with all the language in the

court of appeals opinion, I believe the holding on the second

issue was essentially correct.                   Because the majority opinion

comes to a different conclusion, I respectfully dissent from

"The Discovery Dispute" portion of the opinion.

                               I. FACTUAL BACKGROUND

       ¶75    Mary and Leslie Marlowe (the Marlowes) were involved

in an automobile accident with an uninsured motorist.                         They made

a claim for uninsured motorist coverage from their insurer, IDS

Property Casualty Insurance Company (IDS).                    The Marlowes and IDS

       1
       Marlowe v. IDS Prop. Cas. Ins. Co., 2012 WI App 51, ¶18,
340 Wis. 2d 594, 811 N.W.2d 894 (footnote omitted).

                                            1
                                                                                      No.    2011AP2067.dtp



agreed    to    arbitrate             the    claim       as    provided          in     the       Marlowes'

insurance       policy,          and    thereafter             a    three-member             arbitration

panel was selected.

       ¶76     A discovery dispute soon developed.                                IDS says that it

sought discovery            "to verify             the    existence             and    extent       of   the

Plaintiffs' various alleged injuries."                              It explained that:

       Such discovery is necessary because it goes to the
       essence of the claims that the Marlowes have put in
       issue, namely the existence and extent of their
       alleged injuries.   The alleged injuries arise from a
       rear-end vehicle accident with minimal damage to the
       vehicle, but with claimed medical specials already
       exceeding $60,000.00, and with a claim for permanent
       injury.
       ¶77     The Marlowes asserted in the complaint that started

this    case     that       IDS       "attempted          to       pursue        discovery          of   the

plaintiffs through the use of written interrogatories, requests

for      production              of     documents,                 medical        and            employment

authorizations, income tax return releases, depositions of the

plaintiffs          and     treating          healthcare             providers,             and     defense

medical examinations."                      IDS admitted these allegations in its

answer.

       ¶78     The Marlowes refused to comply with IDS's discovery

demands.

       ¶79     IDS    then        asked      the     arbitration            panel           to    interpret

language       in     the    arbitration             provision             in    relation          to    the

discovery       dispute.               IDS     claimed             that    a     sentence          in    the

provision——namely,               "Local       rules      of        law     as    to     procedure        and

evidence       will       apply"——authorized                  discovery          pursuant          to    the

procedures      in        Wis.    Stat.       ch.    804,          which    is    the        chapter,     in
                                                    2
                                                                           No.    2011AP2067.dtp



Wisconsin's        code     of     civil        procedure,        on      "Depositions            and

Discovery."

        ¶80   In     October       2010     the      arbitration          panel       issued        a

unanimous      decision        interpreting              the    "Local     rules        of       law"

sentence as applying to Chapter 804 of the Wisconsin Statutes.

The panel recognized that                  this     court's       decision       in    Borst       v.

Allstate      Insurance       Co.,    2006          WI    70,     291     Wis. 2d 361,            717

N.W.2d 42, "drastically circumscribe[d] the discovery that can
be taken in arbitration proceedings."                          However, the panel relied

upon an approved exception to the limited-discovery rule that

permits expanded discovery when the parties' contract expressly

provides for it.            The panel concluded that the "Local rules of

law" sentence denoted "the civil rules of procedure that govern

court     proceedings        daily    in        local      courtrooms."               The    panel

asserted      that       Chapter    804     does         "not    contemplate          unfettered

discovery" but rather "discovery that is quick and efficient,

but    cost   effective."            The    panel         put    limitations          on     future

depositions        and    noted    that     a     formal        advance    order       would       be

required for any physical examination of Mary Marlowe.

       ¶81    Significantly,          the           arbitration           panel        declared:

"Nothing in Borst, or any other decision cited, deprives the
panel of authority to implement the clear terms of the agreement

that    govern the         parties' relationship.                  Indeed,       that       is    the

panel's responsibility."

        ¶82   Through their attorneys, the Marlowes filed a lengthy

and    well-argued        letter     brief       seeking        reconsideration             of    the

panel's decision.            Many of the points made in the brief are
                                                3
                                                                      No.    2011AP2067.dtp



adopted by the majority opinion.                 However, the Marlowes' brief

conceded that the panel's "construction of this ambiguous policy

language is one that could be reasonably made."

       ¶83     The     panel    responded       by        issuing     a     supplementary

decision affirming its ruling and answering the points in the

Marlowes' brief.           The supplementary decision relied in part on

Lukowski v. Dankert, 184 Wis. 2d 142, 515 N.W.2d 883 (1994).

       ¶84     In Lukowski, the plaintiff suffered personal injuries
when the truck in which she was riding overturned and she was

ejected through the sunroof.               Id. at 146.              When the plaintiff

made       a   claim    against    her     insurer         for   uninsured          motorist

coverage, her claim was submitted to arbitration.                            Id. at 146–

47.        The arbitration panel determined the full extent of the

plaintiff's damages but reduced her award by 40 percent because

the plaintiff had not been wearing a seatbelt.                        Id. at 147.        In

other words, the panel found the plaintiff 40 percent causally

negligent       for    her     injuries——and         it    did   so       without    expert

testimony presented by the insurer, as was normally required

under Wisconsin case law.           Id. at 147–48.

       ¶85     Ms.     Lukowski's        insurance          policy        contained     the

identical       language     contained     in   the       Marlowes'       policy:     "Local

rules of law as to procedure and evidence will apply."2                              Id. at

152.       All parties in Lukowski interpreted this language to refer

to Wisconsin law.            The plaintiff asserted that the arbitration


       2
       The "Local rules of law" language was not present in the
policy at issue in Borst v. Allstate Insurance Co., 2006 WI 70,
291 Wis. 2d 361, 717 N.W.2d 42.

                                            4
                                                                       No.   2011AP2067.dtp



panel had not followed Wisconsin case law.                            Id. at 151.        The

insurer insisted that the panel had acknowledged Wisconsin law

but   distinguished        the    plaintiff's         case     from    other    cases     on

grounds that expert testimony was not required when a party's

injuries resulted from her ejection from the vehicle because she

did not wear a seatbelt.

      ¶86    This court ratified the parties' interpretation of the

sentence      on     "Local   rules       of       law":     "[T]he     parties    had     a
legitimate expectation that the governing law would be followed

and applied properly."                 Id. at 152 (footnote omitted).                    The
governing      law    on    procedure      and       evidence    was     deemed    to     be

Wisconsin law in statutes and cases.                   See id. at 154.

      ¶87     In the present case, the arbitration panel construed

the "Local rules of law" sentence the same as the arbitration

panel, the court of appeals, and this court had construed it in

Lukowski.      The Brown County Circuit Court overturned the panel's

construction, and the court of appeals then reversed the circuit

court.      The majority now sides with the circuit court.

                                   II. DISCUSSION

      ¶88    The majority opinion is grounded on the premise that

arbitrations        are    different      from       civil    court     trials.       This

premise is unassailable.               However, the majority uses the premise

to severely restrict arbitration discovery not only under the

arbitration        statutes      but    also       under   the   parties'       insurance

contract——notwithstanding applicable language to the contrary.

In the process, the majority opinion undercuts the contractual

authority of arbitrators and creates a serious disincentive for
                                               5
                                                                         No.   2011AP2067.dtp



parties      to    agree    to    arbitration.           In    sum,     despite    its    good

intentions, the majority opinion goes too far.

                            A. The Borst Certification

       ¶89    In    the    Borst      case,     the    court     of    appeals     certified

three     questions        including          the     following:        "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?"               Borst, 291 Wis. 2d 361, ¶2.                The Borst
court summarized its answer as follows:                          "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."                            Id., ¶3.

       ¶90    The    question         posed    in     the     Borst    certification      was

provocative because of its reference to the "inherent authority"

of arbitrators.            In Lukowski, the court had declared that "[a]n

arbitrator        obtains     authority        only     from     the    contract     of   the

parties and therefore is confined to the interpretation of that

contract."         Lukowski, 184 Wis. 2d at 152; see also Nicolet High

Sch. Dist. v. Nicolet Educ. Ass'n, 118 Wis. 2d 707, 714, 348

N.W.2d 175 (1984); Milwaukee Prof'l Firefighters, Local 215 v.

City    of   Milwaukee,          78   Wis. 2d 1,       21,     253    N.W.2d 481     (1977).

Thus, the certified question posited an option that this court

had rejected repeatedly.

       ¶91    The certified question appears to have diverted the

court's      attention       from     the     possibility        that    the     arbitration

statutes themselves provide authority for other discovery, and
                                                6
                                                                        No.    2011AP2067.dtp



led   to      the   court's        creation       of    non-statutory     obstacles       for

arbitrators           in        construing        contracts      that         provide    for

arbitration.          These conclusions are admittedly much clearer to

me in hindsight than they were when I joined the Borst opinion

in 2006.       They require explanation.

                                  B. The Borst Decision

        ¶92    Looking          solely    at    the      arbitration     statutes,        one

perceives       two      sections        that   bear      on   discovery:       Wis.    Stat.
§§ 788.06 and 788.07.                All the attention has been focused on

§ 788.07, which reads:

           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.
      ¶93      The Borst court explained the factual background of
that case when it interpreted Wis. Stat. § 788.07.                                Plaintiff

Borst was injured in an accident with an uninsured motorist.

Borst, 291 Wis. 2d 361, ¶5.                  The insurer believed that Borst was

50 percent liable for the accident.                       Id., ¶6.     It requested that

all     medical       records       related       to     the   plaintiff's       claim     be

transmitted         to     it    after    Borst     finished    his    treatment.        Id.

Borst provided these records as well as records of his wage

loss.      Id., ¶7.

        ¶94    After       an     arbitration          panel   was    created,     Allstate

served Borst with "a set of written interrogatories, a request

                                                7
                                                                           No.   2011AP2067.dtp



for document production, and medical authorizations."                               Id., ¶10.

These requests were resisted and challenged in a motion to the

arbitration panel to quash the discovery.                            Id.      Allstate then

raised the stakes, asking the panel to approve a deposition and

to authorize a release of records.                        Id.       The panel ultimately

ordered      Borst       to    (1)     give    a   deposition,       (2)    supply     medical

authorizations,           and         (3)     cooperate      with     other        appropriate

discovery.         Id.        In its argument to the panel, Allstate relied
heavily      on    the        proof    of     claim    provisions     in     the     insurance

policy.      Id.

       ¶95    Borst refused to submit to a deposition, and Allstate

elected not to press that issue, although it did not waive its

"right" to a deposition of Borst.                      Id., ¶11.       It did depose the

other driver involved in the accident, while Borst provided a

list    of    damages          and     confirmed       the    accuracy        of    all   pre-

arbitration discovery.                Id.

       ¶96    The Borst court summarized the parties' arguments:

            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. . . .
       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 [of $5,000 to settle the case].
Id., ¶54 (emphasis added).


                                                   8
                                                                No.    2011AP2067.dtp



       ¶97    Allstate    argued     that      inasmuch   as   the     legislature

allowed for the taking of depositions during arbitration, it

must have allowed for other less costly forms of discovery and

that       arbitrators    should     have      discretion,     based     on    their

evaluation of the facts of the case, to determine the extent of

the discovery permitted.           Id., ¶55.

       ¶98    The Borst court then said:

            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. . . .

            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.
Id., ¶¶56–57.

       ¶99    The court asserted that Wis. Stat. § 788.07 did not

speak to "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."           Id., ¶58.3

       3
       Attorney Mark Frankel submitted an amicus brief in the
Borst case on behalf of the Alternative Dispute Resolution (ADR)
Section of the State Bar of Wisconsin. After the Borst decision
was issued, Frankel wrote an analysis of the case for the
Wisconsin   Lawyer,   observing  that   Borst's   holding   that
"arbitrators have no inherent ability to determine the necessity
and scope of allowable discovery" was a "surprise" to many
practitioners in the field of ADR.      Mark A. Frankel, Borst
Clarifies Arbitration Procedures, Wis. Law., Dec. 2006, at 8,
11.

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        ¶100 There     is    no     dispute         that    the       Borst        case    is    the

controlling      law    in    Wisconsin        and    applies             here   unless     it    is

clarified, modified, or distinguished on the facts.                                 In my view,

this court should pursue all these options.

                            C. The Applicable Statutes

        ¶101 The       court        should           carefully              review         Borst's

interpretation of the arbitration statutes vis-á-vis discovery.

Borst did not consider any alternative interpretation of Wis.
Stat. § 788.07 and it did not interpret Wis. Stat. § 788.06 at

all.

        ¶102 Wisconsin       Stat.      § 788.07,          by   its       terms,     requires      a

party    to    petition      for    a    deposition.                The    petition       must    be

"approved by the arbitrators or by a majority of them," and then

submitted to "any court of record in and for the county in which

such arbitrators . . . are sitting."                       Wis. Stat. § 788.07.                  The

statute appears to set up a very rigorous process for obtaining

the    deposition      of    either     a     party    or       a   non-party        because      it

requires the party seeking a deposition to go to court.

       ¶103 In     Employers        Insurance         of    Wausau          v.     Jackson,      190

Wis. 2d 597,       610,      613,       527    N.W.2d 681            (1995),        this    court

observed that the basic tenet of arbitration is avoiding the

courts.       Thus, Wis. Stat. § 788.07 can be viewed as setting up a

barrier to one of the most intrusive and expensive forms of




                                               10
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discovery, rather than precluding less costly forms that might

obviate the need for a deposition.4

       ¶104 This         alternative      view      of    the        statute    is   arguably

inconsistent with the doctrine of expressio unius est exclusio

alterius        ("the    express    mention         of   one    matter     excludes      other

similar matters [that are] not mentioned").                              See FAS, LLC v.

Town       of   Bass    Lake,     2007    WI    73,      ¶27,    301     Wis. 2d 321,        733

N.W.2d 287.            But   it   is     perfectly       consistent        with      insurance
contracts that give an insurer broad authority to obtain "proof

of claim" information from its insured in processing a claim.5

That form of "discovery" does not require statutory authority.

In my view, it is difficult to explain why the law would permit

depositions        but    prohibit       more    modest,        less     costly      means   of

obtaining pre-hearing discovery.6

       ¶105 This         alternative      view        also      is    consistent      with     a

reasonable interpretation of Wis. Stat. § 788.06(2), a provision

of the arbitration statutes that has heretofore been ignored.

That subsection provides:




       4
       See Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175,
180, 311 N.W.2d 673 (Ct. App. 1981) (stating that adequate
preparation by counsel, "with full knowledge of the facts before
them[,]" will result in more orderly trials and in many
instances will avoid needless trials).       The same principle
applies to depositions and to arbitration hearings.
       5
           See subpart D, infra.
       6
       Query: Does Wis. Stat. § 788.07 contemplate depositions
upon written questions, as authorized under Wis. Stat. § 804.06?
If it does, why would interrogatories be prohibited?

                                               11
                                                  No.    2011AP2067.dtp


          (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.
     ¶106 The majority contends that neither an arbitrator nor

the representative of a party may issue a subpoena or a subpoena

duces tecum for anything connected with discovery.           Majority

op., ¶34.    It contends that all subpoenas issued under Wis.

Stat. § 788.06 must be for the hearing itself.     Id.    This makes

little sense.   The attendance of witnesses at a deposition may

be compelled by subpoena.     Wis. Stat. §§ 804.05(1), 805.07.       A

subpoena may be served requiring a person to produce designated

materials.   Wis. Stat. § 804.05(2)–(3).     Although a deposition

may proceed without a subpoena, a subpoena may be necessary if a

witness fails to comply with other notice.    If a subpoena may be

issued for a deposition, then Wis. Stat. § 788.06 is not limited

to subpoenas for hearings.7




     7
       The title of Wis. Stat. § 788.06——"Hearings before
arbitrators; procedure"——covers two subsections, the first
subsection related to hearings and the second subsection related
to procedure.    The procedure applies to more than hearings
because of the references to Wis. Stat. § 805.07.

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                                                                         No.    2011AP2067.dtp



       ¶107 Wisconsin Stat. § 788.06 twice refers to Wis. Stat.

§ 805.07, which specifically includes subpoenas for depositions,

§ 805.07(1), as well as subpoenas requiring the production of

materials     such     as    books,    papers,       and   documents,           § 805.07(2).

Section 788.06 also provides that if a subpoena is not obeyed,

"the issuing party [that is, the party that issued the subpoena]

may    petition      the    circuit    court     for   the     county          in   which    the

hearing      is    held     to    impose    a    remedial      sanction."            (Emphasis
added.)      The emphasized language implies that the circuit court

does   not    normally       issue    the   subpoena       for      a    deposition.          In

addition,     it     would   be curious         if   arbitrators          who       had   issued

subpoenas for the hearing had to petition the circuit court for
a remedy if their subpoenas were not obeyed.

       ¶108 The present Wis. Stat. § 788.06 became law in 1986.

See 1985 Wis. Act 168.                 The revised law, championed by the

Wisconsin         Judicial       Council,   created        a   much       more       expansive

subpoena provision than the previous statute and was intended to

"conform[]        arbitration       subpoena     practice      to       that    followed      in

circuit court."             Judicial Council Committee Note, 1985, Wis.

Stat. § 788.06.             Subpoena practice in circuit court includes

discovery.

       ¶109 Once again, the present section refers twice to Wis.

Stat. § 805.07; the previous section, Wis. Stat. § 788.06 (1983–

84), made no such reference.                    The present section extends the

subpoena power to the representative of a party (including but

not limited to an attorney), in addition to arbitrators.                                    The

present section is not limited by its terms to the hearing, as
                                            13
                                                              No.   2011AP2067.dtp



the previous section was.8             In short, the majority's conclusion

that       the   statute   applies   only   to   subpoenas   for    hearings   is

strained at best.

       ¶110 The      previous   Wis.    Stat.    § 788.06   mirrored   9   U.S.C.

§ 7, which is narrowly written.9            Nonetheless, § 7 of the Federal

       8
           Wisconsin Stat. 788.06 (1983–84) provided:

            When more than one arbitrator is agreed to, all
       the arbitrators shall sit at the hearing of the case
       unless, by consent in writing, all parties shall agree
       to proceed with the hearing with a less number.    The
       arbitrators selected either as prescribed in this
       chapter or otherwise, or a majority of them, may
       summon in writing any person to attend before them or
       any of them as a witness and in a proper case to bring
       with the person any book, record, document or paper
       which may be deemed material as evidence in the case.
       The fees for such attendance shall be the same as the
       fees of witnesses in courts of general jurisdiction.
       The summons shall issue in the name of the arbitrator
       or arbitrators, or a majority of them, and shall be
       signed by the arbitrator or arbitrators, or a majority
       of them, and shall be directed to the said person and
       shall be served in the same manner as subpoenas to
       appear and testify before the court; if any person or
       persons so summoned to testify shall refuse or neglect
       to obey said summons, upon petition the court in and
       for the county in which such arbitrators, or a
       majority   of  them,  are   sitting  may   compel  the
       attendance of such person or persons before said
       arbitrator or arbitrators, or punish said person or
       persons for contempt in the same manner now provided
       for securing the attendance of witnesses or their
       punishment for neglect or refusal to attend in the
       courts of this state.

(Emphasis added.)
       9
           9 U.S.C. § 7 provides:

            The arbitrators selected either as prescribed in
       this title or otherwise, or a majority of them, may
       summon in writing any person to attend before them or
                                 14
                                                              No.   2011AP2067.dtp



Arbitration Act has been interpreted to permit discovery, unless

the discovery involves non-parties.10                 This could explain why

Wis.    Stat.   § 788.07,     which    has    no   parallel   in    the   Federal

Arbitration Act, was created——namely, to make depositions more

difficult to obtain than other discovery.

       ¶111 In sum, Borst's interpretation of Wis. Stat. § 788.07

created     a   restrictive    rule,    but    that    rule   disregarded     the

adjacent statute and may have misinterpreted the purpose of the
deposition statute.


       any of them as a witness and in a proper case to bring
       with him or them any book, record, document, or paper
       which may be deemed material as evidence in the case.
       The fees for such attendance shall be the same as the
       fees of witnesses before masters of the United States
       courts. Said summons shall issue in the name of the
       arbitrator or arbitrators, or a majority of them, and
       shall be signed by the arbitrators, or a majority of
       them, and shall be directed to the said person and
       shall be served in the same manner as subpoenas to
       appear and testify before the court; if any person or
       persons so summoned to testify shall refuse or neglect
       to obey said summons, upon petition the United States
       district court for the district in which such
       arbitrators, or a majority of them, are sitting may
       compel the attendance of such person or persons before
       said arbitrator or arbitrators, or punish said person
       or persons for contempt in the same manner provided by
       law for securing the attendance of witnesses or their
       punishment for neglect or refusal to attend in the
       courts of the United States.
       10
       See, e.g., Life Receivables Trust v. Syndicate 102 at
Lloyd's of London, 549 F.3d 210 (2d Cir. 2008); Stanton v. Paine
Webber Jackson & Curtis, Inc., 685 F. Supp. 1241 (S.D. Fla.
1988); Gabriel Herrmann, Note, Discovering Policy Under the
Federal Arbitration Act, 88 Cornell L. Rev. 779, 791–92 (2003)
("[C]ourts have generally construed [§ 7 of the Federal
Arbitration Act] as granting arbitrators the power to order the
parties to submit to pre-hearing discovery.").

                                       15
                                                                           No.    2011AP2067.dtp



                          D. Insurance Contract Provisions

      ¶112 The        Borst      case     does      not    explain     the        relationship

between    statutory           authority      for    discovery        in    an     arbitration

proceeding and contractual provisions that require an insured to

provide information to its insurer.                        In Borst, the plaintiff's

medical records and bills and wage loss records were supplied to

the insurer.          Borst, 291 Wis. 2d 361, ¶¶7, 54.                      Borst's initial

position     was          to   resist     a    deposition,         which          was    clearly
authorized by statute.                The Borst court stated that "absent a
contractual provision specifying how discovery will be handled,

the parties are limited to the discovery procedures provided in

the statutes."             Id., ¶59.          But the decision does not explain

whether contractual provisions requiring such items as medical

records     and       even      a   medical         examination        are        included      in

"discovery."

      ¶113 The majority opinion in this case goes beyond Borst

because it appears to nullify clear and sensible requirements in

the insurance contract for the insured to supply information to

the   insurer        in    those    situations        where     the    parties          agree   to

arbitration.          The majority directs the arbitration panel, on

remand, "to cabin discovery to the depositions contemplated in

§ 788.07, i.e., 'depositions to be used as evidence before the

arbitrators.'"             Majority     op.,     ¶2;      see   also       id.,    ¶11       ("[W]e

return    the     action       to   the    panel       with     instructions            to   limit

discovery       to    the       section       enacted      by    the       legislature          for

precisely    these         situations:        Wis.   Stat.      § 788.07.");            id.,    ¶23

("[W]e instruct the arbitration panel to limit discovery to that
                                               16
                                                                 No.   2011AP2067.dtp



provided for in Wis. Stat. § 788.07.").                   The majority opinion

sums up its second holding:

     [T]he legislature has set forth, in the form of
     § 788.07, a narrow scope of discovery for arbitration
     proceedings in the absence of an explicit, specific,
     and   clearly  drafted   arbitration   clause  to the
     contrary. IDS failed to include any such language in
     its policy and we therefore instruct the panel to
     limit discovery to that provided for in § 788.07.
Id., ¶2 (emphasis added).

     ¶114 The majority opinion appears to preclude the insurer

from resorting to any provision outside the arbitration section
of the insurance contract to obtain information that may be used

to prepare for a possible arbitration hearing, i.e., prehearing

discovery.         Moreover,     its   tough      new    conditions——"explicit,

specific,    and    clearly    drafted"     authority      in    the    arbitration

clause——provide       a   test     that     may     supersede         the   parties'

intentions.

     ¶115 The      IDS    insurance    contract         with    the    Marlowes   is

explicit, specific, and clear in this case:

            What To Do In Case Of An Auto Accident Or Loss

            . . . .

         1.   We must be notified promptly of how, when
    and where the accident or loss happened.      Notice
    should also include the names and addresses of any
    injured persons and any witnesses.

            2.     A person seeking any coverage must:

              a.   Cooperate with us in the investigation,
    settlement or defense of any claim or suit.

             . . . .


                                       17
                                                        No.   2011AP2067.dtp


           c.   Submit,   as        often   as    we     reasonably
require:

                 (1) To physical exams by physicians we
select.    We will pay for these exams.

                (2) To answer questions under oath
when asked and by anyone we name.    They shall do so
separately, outside the presence of any other person
who may be requested to answer questions under oath in
connection with the loss. They must also sign copies
of the answers.

          d.   Authorize us to obtain medical reports
and other pertinent records.

           e.   Submit a proof of loss when required by
us.

      . . . .

      Medical Expense Coverage

     We will pay reasonable expenses for necessary
medical     (including     chiropractic) . . . services
incurred because of bodily injury sustained by an
insured and caused by an accident.

      . . . .

      We have the right to:

      1.   Obtain and use:

           a.   Peer reviews; and

           b.   Medical bill reviews

of the medical expenses and services to determine if
they are reasonable and necessary for the bodily
injury sustained.

     2.   Use a medical        examination       of    the    injured
person to determine if:

          a.   The bodily injury was caused by a motor
vehicle accident; and



                               18
                                                                     No.      2011AP2067.dtp


                    b.      The medical expenses and services are
        reasonable       and   necessary for the bodily     injury
        sustained.
        ¶116 Here, IDS sought:

             (a)    written interrogatories.

             (b)    requests for production of documents.

             (c)    medical and employment authorizations.

             (d)    income tax return releases.

             (e)    depositions of the plaintiff.

             (f)    depositions of treating healthcare providers.

             (g)    defense medical examinations.

        ¶117 Depositions      of     the    plaintiffs       and    of     the    treating

healthcare       providers    are    explicitly        authorized        by    Wis.   Stat.

§ 788.07.

        ¶118 A   defense     medical       examination       is    authorized      by    the

contractual        requirements       to    submit      to    "physical          exams   by

physicians we select" and "a medical examination of the injured

person."

        ¶119 Requests for production of documents and "medical and

employment authorizations" appear to overlap.                       These demands are

grounded in the contractual authority "to obtain medical reports

and other pertinent records," "proof of loss," and "[m]edical

bill reviews."

        ¶120 Requests for income tax return releases may be related

to   plaintiff's      medical       expense      deductions       and/or      plaintiff's
income over time.          Such returns would have to be relevant and

might    require     justification         to    the   arbitrators       but     they    are

certainly not irrelevant per se.

                                            19
                                                                           No.   2011AP2067.dtp



        ¶121 Written interrogatories               can    be       construed      as    falling

under    the    requirement         to   "answer     questions         under       oath      when

asked."

        ¶122 This case is factually different from the Borst case.

Plaintiff      Borst    maintained         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    a
settlement offer.            See ¶96, supra.         Here, purportedly, there is
a claim of permanent injury, and a request for medical records

and bills that have not been supplied; furthermore, causation is

at issue.       See ¶76, supra.

        ¶123 Consequently,          I    believe     it       is    imperative         for    the

majority to explain why the discovery sought by IDS was not

explicitly       authorized         by   the      insurance         contract.           If     an

insurer's       agreement      to    participate         in    arbitration         serves      to

nullify the insurer's contractual rights to obtain information

from its insured, insurers will face a powerful disincentive to

agree     to    arbitration,         and     the    arbitration            of    contractual

disputes will suffer a major setback.

                               E. Standard of Review

     ¶124 There         is    one    additional       concern.              I    believe      the

majority opinion misstates the standard of review in relation to

the arbitration panel's discussion of discovery.

    ¶125 The arbitration panel based its discovery ruling on a

sentence in the arbitration provision of the insurance contract,

namely, "Local rules of law as to procedure and evidence will
                                             20
                                                                        No.       2011AP2067.dtp



apply."      As the majority opinion notes, the panel declared that:

"The    term    'local    rules       of       [law   as    to]    procedure[,']        as   the

policy employs it, is both clear and informative.                                  It denotes

the civil rules of procedure that govern court proceedings daily

in local courtrooms."               Majority op., ¶5.              The panel added that,

"If    the   purpose      of    arbitration           is    to    achieve    an     expedited,

efficient decision that ultimately determines the truth, more,

not less, preparation for hearing is the most sensible way to
achieve that, a goal the contract contemplates."

        ¶126 When an arbitration panel interprets a provision in an

applicable       contract,          the    panel's         interpretation          should    be

afforded some deference in review by a court.                          Such deference is

captured by the concept of "perverse misconstruction."

        ¶127 "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."                                   Baldwin-
Woodville Area Sch. Dist. v. W. Cent. Educ. Ass'n, 2009 WI 51,

¶21, 317 Wis. 2d 691, 766 N.W.2d 591 (citations omitted).                                     A

court must apply the standard of review that is appropriate for

the facts of the case.

        ¶128 An arbitration award involving the interpretation of a

contract will not be disturbed unless it is the product of a

perverse       misconstruction            of    the    contract,       City       of    Oshkosh

(Public        Library)        v.    Oshkosh          Public       Library        Clerical     &

Maintenance Employees Union Local 796-A, 99 Wis. 2d 95, 106, 299

N.W.2d 210 (1980) (citing cases), or unless the contract itself
                                                 21
                                                             No.    2011AP2067.dtp



violates    the   law.      Here,      the   appropriate    standard      is    the

"perverse misconstruction"          standard   because     Borst    permits     the

scope of discovery to be set out in the contract.

       ¶129 In Baldwin-Woodville, the court stated:

            [W]e do not determine which construction——the
       arbitrator's or the District's——is more reasonable.
       See Lukowski, 184 Wis. 2d at 153 ("[T]his court will
       not upset the award even if this court might have
       decided the matter differently.").  Instead, we will
       uphold   an  award   if  there  is "some   reasonable
       foundation for the interpretation of the contract
       offered in the decision." Id.

Baldwin-Woodville, 317 Wis. 2d 691, ¶22.
       ¶130 The majority would be hard pressed to argue that there

is   no   reasonable     basis   for   the   panel's   construction       of    the

"Local rules of law" sentence in the arbitration provision of

the contract.      After all, the Marlowes' attorney conceded that

the construction was "reasonably made."            Moreover, the sentence—

—which is not unique to the Marlowes' insurance contract——must

mean something, and it is not plausible that the sentence was

intended    to    mean   that    arbitrators     are   bound       by   rules    of
procedure and evidence established by the circuit courts——county

by county——but need not follow the procedural and evidentiary

rules embodied in state law.

       ¶131 The majority's standard of review cites the perverse

misconstruction standard but then disregards it.                   Majority op.,

¶10.

       ¶132 Clearly, a contract may authorize prehearing discovery

in an arbitration proceeding.            It is not manifest disregard of

the law or a violation of strong public policy to do so.                        The
                                        22
                                                                         No.    2011AP2067.dtp



issue here is whether the contract's reference to "Local rules

of law" achieved this purpose.                 This court is required to give a

deferential review of the arbitration panel's construction of

the contract language, not rely on extraneous law.

        ¶133 Proper        application     of        the    perverse      misconstruction

standard would put this case in a different light.

                                   III. CONCLUSION

        ¶134 Once      again,    the     theme       that    permeates         the   majority
opinion    is       that   arbitrations        are    different       from      civil     court

trials     and      thus     discovery    in     arbitration          should        be   wholly

different from discovery in court cases.

        ¶135 I agree that arbitration discovery should normally be

simpler       and     more    streamlined        than       civil     court      discovery.

Arbitrators have a vested interest in making arbitration work as

intended.            Thus,     depriving       arbitrators          of    virtually        all

authority to manage prehearing discovery, consistent with the

goals    of     arbitration,      and     forcing          the   parties       to    discover

evidence      and     present    evidence        primarily       at      the    arbitration

hearing, strike me as undercutting arbitration, not facilitating

it.   After this decision, time will tell.

      ¶136 For the foregoing reasons, I respectfully concur in

part and dissent in part.




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