Divorce Mediation Blog

Arbitration Where Life Imitates Sport: Part 2

Friday, September 14, 2012

In Part 1, we briefly described baseball arbitration and it origins. Now, we discuss how this methodology may apply to family and probate law cases.

In every probate and family financial case, one party is seeking something that the other party also wants, whether it be a specific piece of property or a dollar sum. Sometimes this desire is expressed as a percentage of a probate or marital estate, or income in the case of support.

When parties try cases, they tend to work from the extremities because they anticipate that the judge or arbitrator might “split the difference”, so a party reasons, “why not stretch the range in my direction? If I ask for more than I really want, I may get what I need”. When both parties do the same, settlement chances diminish and the chance of a windfall/stinging loss increase. Baseball arbitration urges both parties towards to middle, so as to cut the risk of the other side’s proposal being deemed the more reasonable.

The applications of baseball arbitration in the probate and family law contexts may include a dispute over a percentage share of the estate. In divorce, a case that is not a clear cut case for 50-50, parties may be more inclined to stay within a more modest range of disparity such as 60-40, to avoid the risk of losing at a more extreme percentage, if the arbitrator concludes that the spouse has over- reached. In business or other property valuation, wild highs and lows are discouraged. The same principles will apply to probate estates.

In a support matters, the support payor may well offer more to avoid the chance of the baseball arbitrator picking the over-the-top request of the payee, but since the same forces are at work, the support recipient is likely to curb his or her demands for the same reason.

The results: the parties are closer together before trial, so the chances of settlement are enhanced; and the arbitrator is more likely to choose a result that is closer to the range with which both parties can live, and reducing the potential for windfalls/calamitous results. But, there are drawbacks, and we will discuss them in our next entry.

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