Divorce Mediation Blog

Arbitration Where Life Imitates Sport: Part 3

Friday, September 21, 2012

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.

Get e-mail notifications of new blog posts! Enter email address below.:

Delivered by FeedBurner

other articles

recent posts


arbitrators divorce and family law mediators rehabilitative alimony Self-adjusting alimony orders annulment how baseball arbitration works family law mediations Family Law Arbitration Massachusetts lawyers alimony law SJC support orders disputes special master family law arbitrators facilitated negotiations alimony divorce process Alimony Reform Act divorce mediators Defense of Marriage Act divorce and family law family support lawyers COLA divorce mediations alimony reform legislation LDRC Baseball Arbitration lawyer-attended mediation Levine Dispute Resolutions Act Reforming Alimony in the Commonwealth Massachusetts divorce mediators divorce arbitrator litigation Massachusetts divorce lawyers family and probate law disputes Levine Dispute Resolution Center LLC arbitration mediators Uniform Arbitration Act med-arb Levine Dispute Resolution Center health insurance divorce agreement Divorce Massachusetts divorce lawyers Baseball Players med/arb family law arbitrator high-risk methodology Matrimonial Arbitration IRC §2704 arbitrator Child Support Guidelines fraud divorce arbitrators General term alimony child support alimony statute mediator Baseball divorced Levine Dispute Resolution Cohabitation MLB labor agreement divorce mediator divorce mediation Chouteau Levine divorce arbitration Obamacare conciliation family mediation Same Sex Marriage divorce litigation family law mediation medical benefits Massachusetts Alimony Reform Act lawyer resolve disputes self-adjusting alimony DOMA Divorce Agreements separation Major League Baseball Arbitration Boston private dispute resolution mediation Massachusetts alimony alimony orders dispute resolution Massachusetts Lawyers Weekly health coverage Massachusetts alimony and child support The Seven Sins of Alimony pre-ARA alimony traditional negotiations divorce judgment