William M. Levine is an AAML Fellow and a former chair of both the AAML Arbitration Committee and the Massachusetts Chapter Arbitration Committee. Mr. Levine is a family law arbitrator and mediator practicing in Westwood and Northampton, Massachusetts.
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Arbitration Insights from an Experienced Practitioner
As a former litigator, what attracted you to the idea of arbitration, both for your clients and for yourself?
The initial impetus came from a training program that was established by the American Academy of Matrimonial Lawyers in the late 1980s. I participated in that training and became a Certified Arbitrator in 1990. The reason why I was interested in taking that training in particular was because I was involved in a high-end divorce litigation practice; I saw that not only was the cost and toll of litigation huge, but frequently the cases were being resolved in settings that were not maximally geared towards suitable resolution.
Arbitration seemed to me to offer several opportunities. It provided a place where people could create their own procedural rules and solutions on how to run a hearing, who would hear the case, and to do it all in a private setting, with someone whom they determined was suited to make the decisions for them. This, as opposed to decisions being made by a public system – at random – based on filing order, and the assignment of cases to judges who may or may not be suited to those particular cases.
In your opinion, do former judges or family lawyers make the best arbitrators?
It depends on a number of factors. In Massachusetts, we’re unusual in that we have a specialized family law bench where judges who hear divorce cases devote themselves to family law entirely. In most other jurisdictions that is not the case. In most jurisdictions judges drop in and out of various kinds of cases – including divorce. This can make a big difference in terms of the suitability of judges for particular cases.
Even when judges are specialized as family court judges, their effectiveness to act as an arbitrator varies, depending on experience, temperament, sensitivity to the budget needs of clients, and flexibility in allowing the clients to (as they must be allowed in arbitration) determine the rules and procedures of their cases. Arbitration requires both authority and a lighter touch, simultaneously, which not all ex-judges want to or can do.
One of the wonderful things about arbitration is that in the selection of the person who will be the fact-finder and the decision-maker, the parties consider anything they want including temperament, background, experience and track record with particular kinds of cases. Even judges from the most specialized courts don’t necessarily have the most specialized experience in certain kinds of cases — particularly complicated business matters. Sometimes, experienced divorce lawyers who have practiced at a level that involves more sophisticated issues may be a more suitable arbitrators than former judges.
So, the short answer is that in some cases it might not make a difference if you can find a certified family lawyer arbitrator and judge of equal temperament, subject matter exposure, and so forth. But there will always be cases where a specialized lawyer who has settled and tried hundreds and hundreds of cases at a sophisticated level may be preferable. That being said, in our jurisdiction there are both retired judges, and former litigators who are doing arbitration. And for the people who have selected them, the choice that they have made is based on the full scope of factors that they think is relevant to deciding who is the proper person to hear their case.
What’s the relationship between mediation and arbitration? Are they mutually exclusive?
Well, they are and they’re not. They are not mutually exclusive in the sense that they are both purely voluntary processes. They are both processes where people are opting out of the public system, and they’re processes in which people are selecting who is going to be the impartial person involved in their [case and] lives. Where the two depart and become diametrically different is that mediation is a process which purely leaves to the parties the responsibility and the right to make all decisions. They do it with the help of a mediator who is skilled at dealing with negotiation, skilled at giving people information in an unbiased manner, and someone who has the people-handling skills to keep them talking productively until they reach an agreement; whereas an arbitrator is a decision maker. Determined by the parties, the arbitration process can either be quite formal or quite informal; the arbitrator’s job is simply to make a reasoned decision for the parties who cannot, for whatever reason, settle it for themselves.
The key common component to the two of them is that both are engaged in empowering the clients to make as many decisions for themselves as they can. In the case of mediation, they’re making all the decisions. And in the case of arbitration, they’re deciding the forum, the person making the decision, and the manner in which the person will receive the information in order to make that decision.
In my practice, I no longer represent clients at all: I am simply a mediator and an arbitrator. Some cases end up using both sets of skills. And there are two hybrid processes – one known as med-arb and another is called arb-med. In family law, med-arb is the more common of the two, which is to say that somebody works with the parties as a mediator to the point where they reach an impasse (it’s their determination that an impasse has occurred), and the mediator may then switch hats and turn into an arbitrator.
In other words, it’s consistent with the idea of empowering the people to make their own decisions … right up to the moment that they’ve given up making those decisions – at which point they turn it over to someone whom they’ve entrusted with sole responsibility of making that decision for them.
What training is available for matrimonial law arbitrators, and how important is it for an arbitrator to have this training?
Arbitration is very different from traditional litigation. So, whether it be an ex-judge, a lawyer, or other professional – because there are other professionals who do arbitration [aside from] lawyers and judges – it’s important for the arbitrator to understand what the limitations are on his or her authority, what the limitations are within their own jurisdiction about their authority, and what the customs are within the litigation setting in their particular jurisdiction.
It’s important to understand the breadth of flexibility that arbitration affords to the parties. And it’s also important to understand how to empower the parties to make the decisions about how they’re going to structure their arbitration process best to meet their needs, their finances, and their own sense of privacy and decorum.
The only training I’m aware of that focuses on family law arbitration is the AAML program, which began, I believe, in 1989. There have been 23 or 24 trainings since that time. I believe that we are the only organization that does that training.
Find out more about William Levine here: www.levinedisputeresolution.com.