781.708.4445

wmlevine@levinedisputeresolution.com

Divorce Mediation Blog

Matrimonial Arbitration is the Not Credit Card Kind

Wednesday, May 27, 2015

In the May 25th Opinion page of The Boston Globe, Law Professor Jeff Sovern wrote convincingly that arbitration, the kind that appears in the very small print of credit card agreements should be banned as unfair and anti-consumer. Thinking back to law school the term “contract of adhesion” comes to mind, where the commercially powerful victimizes the weak with terms on which the latter has no practical ability to negotiate.

But the piece also brings us back far more recent events, in which one of us attempted, over a period of nearly 10 years, to advance a proposed Family Law Arbitration Act, on behalf of the American Academy of Matrimonial Lawyers, through the pre-legislative stage. In trying to build support among the bar by endorsement of the Massachusetts and Boston Bar Associations, without which legislators will not consider sponsorship, Bill Levine spent parts of 3 separate years successfully obtaining approvals of the associations’ family law sections, only to founder when other sections had interests that viewed family law arbitration as if it emanated from the small print of similarly one-sided transactions. In some frustration, and by an otherwise tactical decision, we backed away from the effort, approval of the broader bar associations being unlikely, to await the Uniform Laws Commission’s (formerly NCCUSL) Model Family Law Arbitration Act that is expected in 2016 or so, when we expect to take another run.

Matrimonial arbitration is not credit card arbitration. Every agreement from which it must arise is one in which that parties have, or have the right, to counsel. In each case, both parties have an absolute right to say “no”. Every agreement to arbitrate future disputes, as part of the divorce agreement is approved by a judge and subject to later objection and review on the basis of contract defenses such as incapacity, duress, coercion or undue influence. Each agreement to arbitrate a present dispute is subject to court approval. Subject matter limitations in the name of parens patraie, such as best interests review and trial de novo of custody matters are policy long established in common law. As a matter of current case law here, all arbitration awards are likely subject to fairness review.

Would some overbearing litigants seek advantage by cutting off opponents’ direct access to court? Most likely, yes. Are there ways to vet and avoid the consummation of such schemes that deny free will? Absolutely. Should this concern throw out legislative promotion of a cost-effective process that merely adds one more optional remedy for parties’ who struggle with a highly public, overloaded and fiscally-hobbled public court system, serving themselves and relieving resource scarcity for the public at the same time? Emphatically, no.

Don’t let banks prey on weak consumers. But, at the same time, see the problem for what it is: overbearing commercial interests reducing their own liability for predatory lending practices; and not an indictment of arbitration per se.



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



Delivered by FeedBurner

other articles


recent posts


tags

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