In Massachusetts, divorce and Family Law cases are handled by the Probate and Family Court. Under Massachusetts, law, proceedings in the Probate and Family Court are public and can be observed by anyone. Additionally, almost all cases in the Probate and Family Court are scheduled to be heard at 8:30 a.m. (which can be as many as 75-100 cases scheduled to be heard that day), and then the judge calls all cases in whatever order he/she deems fit. This means, if your case is heard first, there can be over 100 people in the courtroom to listen to the issues pending in your case.
Additionally, the Probate and Family Court is notoriously backlogged. Thus, it can take a few months before a motion on your case is heard, and a few years before your case goes to trial.
Given the very sensitive nature of divorce and Family Law proceedings, many spouses and parents do not want their family issues presented and argued in open court. Further, given the nature of the issues that need to be resolved, many families do not have the benefit of the time that they must wait to get in to see the judge.
However, many families do not understand that there is an alternative. Using a knowledgeable Family Law mediator or arbiter (who is typically a Family Law Attorney or retired Probate and Family Court Judge) to resolve issues in a divorce or Family Law case can expedite the process and keep matters private.
With mediation or arbitration, all proceedings remain private and confidential. The only people who are privy to the proceedings are the spouses/parents, their attorneys, the mediator/arbiter, and any additional experts that may be needed to resolve the issue (e.g. business appraiser). This way, a family’s issues are not being presented in open court, but in a private conference room, where no information has to be shared outside the necessary parties.
Also, mediators and arbiters typically are not as backlogged as the Probate and Family Court, so spouses/parents can schedule a mediation/arbitration session in a week or two. Further, if additional time is needed with the mediator/arbiter, another mediation/arbitration session can be scheduled very quickly, and you do not need to wait for the Court’s next available date, which could be months out. Also, is it not uncommon for a mediator to continue working with spouses/parents and their attorneys by phone and email if it is less pressing issues. Through litigation, spouses/parents do not have the benefit of emailing or calling the judge.
Another benefit is mediation and arbitration proceedings are much more informal than proceedings in the Probate and Family Court. In the Probate and Family Court, the Rules of Domestic Relations Procedure and the Rules of Evidence apply to all hearings. In mediation and arbitration, there are no formal rules; however, the spouses/parents and their attorneys can agree to some ground rules if they wish to do so. Also, because the proceedings are more informal, it gives spouses/parents the ability to be more open to find solutions to their issues that actually work for their family. There can be a free-flowing and open dialog in mediation and arbitration that is not typically available in the Probate and Family Court.
Because there is an open dialog in mediation or arbitration, it also allows a family, their attorneys, and the mediator/arbiter to consider unique and creative solutions for an issue that a Probate and Family Court judge may not otherwise be permitted to consider. This also permits families to remain in control of resolving these issues in a fashion that works for them, rather than a Probate and Family Court judge deciding these issues for them, which may or may not be a resolution that works for the family. Further, by having a knowledgeable mediator/arbiter, the family can get feedback as to whether the solution is legal and can be accepted by the court.
A further benefit to arbitration is that it can be final. By deciding to use arbitration (as opposed to mediation), your arbiter is your judge, and his/her ruling is final (with some rare exceptions). That means that once your arbiter issues his/her decision, the case is over, and the family is bound by his/her decision.
However, one of the greatest benefits of mediation or arbitration is that the parties (and their lawyers) have the opportunity to select who will serve as the mediator/arbiter. Unlike the Probate and Family Court, where a judge is assigned to your case, and you have no control over who that judge will be, you can select who will serve as a mediator/arbiter in your case.
After mediation/arbitration is finalized, the spouses/parents may still have to go to court to have the disposition/agreement approved by the judge. However, instead of substantively arguing the family’s issues before open court, the judge is simply approving the resolution in this case, which is typically a very short hearing of 5-10 minutes long. In these hearings the substantive issues are almost never disused in open court, but rather the judge is just confirming that the resolution is fair and reasonable for the family and under the law. Through mediation/arbitration, the time spouses/parents have to spend in court can be limited to only one court appearance where the judge approves the final resolution.
Overall there are many benefits to mediation and arbitration, including privacy, flexibility, and the benefit of a timeline that better suits a family. Given the fact that about 95% of all divorce and Family Law cases in Massachusetts settle without the need for trial, there are many families who could benefit from mediation or arbitration to resolve their divorce or Family Law matter.