In our last entry we described baseball arbitration and how it may apply to probate and family law property matters, in encouraging settlement or less extreme forms of bargaining. In Parts 1, we briefly described baseball arbitration and it origins. Now, we begin to consider some drawbacks of this process in the family law and probate law context.
Baseball arbitration was created to address a unique situation: what salary would a player earn for the coming year. The arbitrator is required to compare the player to other players’ pay level and performance. Discretion is limited to deciding whose presentation is more compelling in those comparisons, team’s or player’s. Fairness is not a part of the equation.
Probate cases may closely approximate the baseball context. Both sides feel that they are right, and their outcomes hinge on an assessment of a fact: what did the testator intend? Or, what is the value of the asset at issue? Baseball arbitration may cause contestants to hedge preservation of principle in the name of principal retention, and make offers that are more conducive to settlement or practicality.
Family law cases may fit more uneasily. Property division in most states, including Massachusetts, is based on “equitable” principles. That means that a judge or arbitrator shall do that which he or she thinks if fair, after determination and then consideration of enumerated facts. Those facts are dictated by the legislature, as shaped by the appellate courts. But, what the trial judge or the arbitrator does with those facts is broadly discretionary, so long as function is not abused.
Through discretion, property divisions may deviate substantially from that which either side has offered, because of the human element that is embodied in discretion. In anything so complex as a marriage, there may be many views of that which is fair. The law itself maybe fit uneasily into the facts of a given case, and the judge or arbitrator my be in the advantaged position to ferret out the unique factor in a case that turns in one way or the other, because he or she is not tethered to partisan views and wishes, as lawyers and litigants must be, by definition. There is no question that baseball arbitration may eliminate the deeply human element of discretion that can prevent a miscarriage of justice from occurring. We conclude with support matters in the next entry.