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

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