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.
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