Divorce Mediation Blog

High-Low Agreements: Mitigating Finality Anxiety In Family Law Arbitration

Wednesday, September 18, 2013

One of the most prevalent fears that lawyers have in using divorce and other family law arbitration is that under the Massachusetts version of the Uniform Arbitration Act, the parties waive the right to appeal an adverse award for abuse of discretion or errors of law. This is largely true for property and alimony matters, less clearly so for custody and child support.

One way of cutting the sense of risk is to borrow a practice from the commercial litigation world, by entering to a high-low agreement. As examples only, the parties can agree that:

  1. The overall percentage division shall be no broader than 60-40.
  2. The value of the house will be no more than $750,000 and no less than $600,000.
  3. The alimony sum shall be no less than $30,000 and no more that $50,000; and it shall run for a minimum term of 60 months but not longer than 84 months.

The parties may disclose the agreement to the arbitrator or not, as they see fit.

In most cases most of the time, the parties can agree on a reasonable range of outcome but can’t zero in on a final result. Why give up an expedited, cost-effective, flexible and private remedy for fear of lost appellate rights, when a high-low understanding can essentially rule out any motivation to appeal in advance? The costs, delays and high bar for successful appeal make it impractical anyway for all but a very few people in an exceedingly small number of instances.

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