Divorce Arbitration: Nine Reasons For a Family Law Arbitration Statute in Massachusetts
Wednesday, March 06, 2013
As discussed in earlier entries, we are advocate for the adoption of a comprehensive family law arbitration act, based on a model created by the American Academy of Matrimonial Lawyers, and customized locally by the AAML Massachusetts Chapter. Here are nine reasons that we believe would make such a new law beneficial.
- Parties would no longer seek the permission of a judge to arbitrate. Instead, they would present their negotiated agreement to arbitrate for incorporation into an enforceable order based on their own, binding, determination.
- Except for parenting and child support determinations, which would be subject to best interests review by the court at the request of either party, the award would be binding on the court, subject to arbitration review standards only.
- The parties could opt in to appellate rights.
- Standards for contesting an agreement to arbitrate would be specific, without compromising existing contract remedies such and fraud and duress.
- A judge would have clear authority to appoint an arbitrator if the parties have agreed to arbitrate but they have failed to name an arbitrator, or a methodology for replacing one, if necessary.
- The obligations of an arbitrator to disclose all possible conflicts would be specific and comprehensive.
- Arbitrators would be automatically authorized to enter temporary orders and regulate discovery, allowing speedy determination of preliminary matters, and permitting efficient case management (avoiding the cumbersome aspects of master proceedings).
- Awards on family law matters that are subject to modification would be clearly subject to later modification, consistent with substantive law.
- Litigants could avoid the costly and inefficient down time that occurs while parties and counsel wait for motion list and trial calendar openings, crowded courtrooms and while they await court decisions. They would have a legally enforceable right to a timely award, maximize their autonomy, privacy, convenience and efficiency.