781.708.4445

wmlevine@levinedisputeresolution.com

Divorce Mediation Blog

Massachusetts Alimony: Watching the Pot - Part 3 An Arbitrator’s Perspective

Wednesday, April 24, 2013

In our last entry, we celebrated the freedom that a facilitative divorce mediator has when the appellate courts have not yet weighed in on the vagaries and pockets of discretion in the Massachusetts’ one-year old alimony “reform” statute. A statute that can be fairly characterized as open to flexible application can promote rather than limit open discussion, which for divorce mediation, is good.

The arbitrator’s view is quite different.

As family law arbitrators, we are essentially, private judges. While classical commercial arbitration law does not confine the neutral to precise application of prevailing law, family law arbitrators are bound to apply the law because the final result must still be deemed to be “fair and reasonable” to the reviewing judge, under our law. Moreover, when domestic relations clients hire an arbitrator, they are looking for objective and reasoned decision-making. Arbitration is not, after all, supposed to be arbitrary.

In this role, we are no less bound than a trial judge in court to search out what the law is on each point, and to apply it to the facts of the case. The imperfect analogies that are the core methodology of legal inquiry, that may hem in mediation, are the arbitrator’s roadmap. Where the parties do not have appellate rights, or even if they did1 , “getting it right” is the goal. Appellate case law is essential to that cause.

Divorce mediators ask: how may the law be applied to best serve this severing or restructuring family? Family law arbitrators (and masters, facts final), by contrast, ask themselves: what would I do if I were a judge in this case? Clear or confusing, slow and steady or sudden and messy, appellate case law gives arbitrators a window into those factors that would influence a judge in exercising discretion and in balancing competing interests that are represented by this complex statute.

For arbitrators, it doesn’t matter what we wish for, rather it simply matters what is. Let the pot begin to boil.


1As would be permitted if the proposed family law arbitration statute that is advanced by the American Academy of Matrimonial Lawyers – MA Chapter, were law.



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



Delivered by FeedBurner

other articles


recent posts


tags

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