My wife and I are interested in arbitration for our divorce. We tried mediation and still have issues that we cannot resolve. The mediator seems to think we could just transition to arbitration with him but that doesn’t seem right. And we prefer not to go to court for a decision because we’ve heard horror stories about delays in getting heard. Even worse, I’ve heard of people waiting a year or more for a decision after a trial. I don’t understand how that can happen and definitely want to avoid something like that.
Can you explain how arbitration works, what the rules are and whether I can use the same person to arbitrate that we used to mediate?
Family law arbitration in Massachusetts evolved out of case law rather than statute. By that I mean that the legislature has yet to pass a bill that would dictate how to arbitrate family law issues. For now, we are using arbitration rules from a very different type of law along with a decades-old case that essentially says it is OK to arbitrate a divorce. Right now, the legislature is considering a bill to enact some rules around family law arbitration so if you are truly interested helping this process along, you can contact your state representative and senator and ask them to support the Family Law Arbitration Act. Until then, you can agree with your wife to arbitrate your divorce, but it is a bit like the Wild West.
It is important that you chose someone who understands family law and the rules of evidence as your arbitrator. I highly recommend against your mediator’s suggestion that you use him as an arbitrator. Mediation is a confidential process and neither of you should go into arbitration feeling your hands are already exposed or that the judge has pre-judged your situation. You need a fresh set of eyes. Retired probate and family court judges are often a good choice to serve as an arbitrator. Alternatively, practicing family law attorneys who have been trained in arbitration and who, themselves, have trial experience are also a good source. If you do not know any such people, you can consult the website for the Massachusetts Chapter of the American Academy of Matrimonial Lawyers as one resource.
Before beginning arbitration, you will need to sign an agreement setting out the rules. The arbitrator you choose should have a contract that can be modified based on the rules you want. For example, you can agree to relax rules of evidence or not. You can agree on which issues to arbitrate. You can agree on certain timelines for the trial and how long the arbitrator will have to make a decision.
You will still need to present the Arbitrator’s Award to the court for “confirmation” in the end to get your divorce decree. However, the judge will have very limited ability to change the award so that part is generally smooth in the end.
