While the proposed Massachusetts Family Law Arbitration Act (Bill H. 1630) continues to languish in a legislative committee, the recent Imbrie v. Imbrie decision highlights the need for its enactment so that lawyers and litigants have ground rules to follow when agreeing to arbitrate their family law disputes.
In Imbrie, the parties agreed to “private adjudication,” delegating authority over the resolution of their divorce to a mutually agreed upon arbitrator. The order of reference issued by the judge indicated that Rule 53, the rule governing procedures before masters, would govern the procedure. The parties’ arbitration agreement also reflected that the arbitrator would operate pursuant to Rule 53.
The arbitrator heard evidence and submitted a draft judgment and findings of fact for review by the Probate and Family Court judge. The judge adopted wholesale the judgment and findings under the highly deferential standard applicable to binding arbitrations under the Uniform Arbitration Act for Commercial Disputes as reiterated in and applicable to family law matters per the 2016 Gravlin v. Gravlin decision.
In reviewing a binding arbitration award, a judge must confirm it unless he or she finds that the arbitrator granted relief that exceeded his or her authority or decided the matter based on fraud, arbitrary conduct, or procedural irregularity in the hearings. There is no review of the findings or assessment for errors of law. Here, the Appeals Court determined that the application of this standard was incorrect and instead, the judge should have applied the standard of review applicable to proceedings involving masters. That standard is far less deferential. Masters appointed pursuant to Rule 53 in the family law context are expected to find facts, and the judge’s role is to apply the law and enter a judgment based on the facts as settled by the master. The findings are binding unless “clearly erroneous, mutually inconsistent, unwarranted by the evidence before the master as a matter of law or are otherwise tainted by error of law.” Mass. R. Dom. Rel. 53(h). Thus, a judge is much more involved in master’s proceedings than in arbitration proceedings.
Due to the application of the wrong standard of review, the Appeals Court vacated portions of the judgment including as it pertained to legal custody, the parenting plan and the appointment of a parenting coordinator. Thus, these important issues that were arbitrated by agreement of the parties in August of 2019 are now vacated and remanded for further consideration by the trial court, an outcome that would have been avoided if Massachusetts enacted a family law arbitration statute. The citizens of the Commonwealth deserve to have the option to submit their family law disputes for quicker and more private resolution through binding arbitration, and the practice cannot flourish until we have rules in place.
Maureen McBrien, Esq.
Brick, Jones, McBrien & Hickey LLP
250 First Avenue, Suite 201
Needham, MA 02494
mmcbrien@brickjones.com