Divorce Mediation Blog

Why we need a family law arbitration law statute in Massachusetts

Thursday, May 26, 2011

Family law arbitration is a concept whose time is way, way overdue. Arbitration is the private, consensual submission of a dispute to a person whom the parties select and regulate by contract, for a final and binding determination.

The parties pick their decision-maker, accounting for skill, integrity, convenience, cost and subject matter expertise. They choose their place. They set the timing. They define their own rules of procedure – or they may choose to apply traditional rules. They receive their decisions in a timely way. And, it is all private.

So, why isn’t every one doing it? For one, not every litigant can afford or wants to pay for a decision maker, when his/her taxes pay for judges to do that job. But mostly, I think that 1) most people simply do not know that this alternative exists; 2) many lawyers are uncomfortable with the prospect of the process (most have not tried it) because most available arbitrators whom they know well and trust are competing litigators, and selecting a competitor to arbitrate a case when you might be in court against the arbitrator that morning or the next day may be uncomfortable; and lawyers are leery of the fact that under existing law, all binding arbitration is truly final, and therefore, not subject to appellate process. So, feels risky, as it is the last stop for the client without further litigation recourse.

A few other states have addressed the second set of issues, by enacting family law focused arbitration laws that, among many other attributes, give lawyers and parties the option of preserving rights of appeal if they so choose. The American Academy of Matrimonial Lawyers (AAML) has created a model act for matrimonial arbitration and you can see it at aaml.org. The Massachusetts Chapter of AAML has adapted that model act to local practice and law. This proposal is linked here at Proposed Family Law Arbitration Act/ Let me know what questions you have about it and/or what you think about this.

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