Thinking about getting into practicing Arbitration? Why not try family Arbitration!

By: Kayla Stephenson

What is arbitration?

Arbitration is perhaps one of the most popular and widely known dispute resolution process outside of the courts — other than mediation of course! Like litigation, arbitration utilizes an adversarial approach that requires a neutral party to render a decision.

While arbitration was by its very nature developed as a binding process, it can also be non-binding. It is generally voluntary and parties normally can only be involved in an arbitration if they have agreed to be bound by that process.

Family arbitration is a way for one person and their spouse to try and come to an agreement and decide on important matters like divorce, property and parenting time. Family arbitration is also a process where each person tells their side of the story to a neutral party (the arbitrator) and asks the arbitrator to decide. The parties agree on what the arbitrator will decide on before arbitration begins. The arbitrator makes decisions based on the law. A decision from an arbitrator is called an “award”.

The parties must get independent legal advice from a lawyer before starting arbitration. This is necessary for family arbitration awards to be enforceable in court.

What can a Family Arbitrator can decide?

An arbitrator’s award can cover things like:

• property
• child and spousal support
• parenting time
• decision-making responsibility of children

In family law, an arbitrator can’t:

• grant a divorce
• annul a marriage
• declare someone to be or not be someone else’s child (this needs to be done in court by the parties)

Arbitration awards can’t be enforced in court unless both sides received legal advice. An arbitration agreement must set out what the arbitrator can decide. Each party should get independent legal advice to help determine what issues the arbitrator’s award can address.

The possible loss of control of the process can be an issue for counsel when considering the use of any dispute resolution process. The litigation process and the rules governing it are familiar to counsel.

Counsel can represent his/her client during the arbitration proceedings should the client so instruct. Counsel also has an important role to play in providing advice in respect of any legal issues that arise during the course of or following an arbitration, including the drafting or review of a settlement agreement.

What happens during a family arbitration?

Although arbitration takes place outside of a courtroom, it is a legal proceeding and the arbitrator acts like a judge. The arbitrator must be impartial and give each person the opportunity to present their case. The arbitrator will consider the evidence and each person’s story when rendering an award. Unlike litigation, arbitration generally allows the parties to have a guideline on aspects of the resolution process to suit their needs and the nature of the dispute.

Just like mediation, depending on the parties, the outcomes they want and the nature of the dispute, there are advantages and disadvantages to family arbitration.

Advantages of arbitration:

• The parties can select the arbitrator;
• The arbitrator can be selected on the basis of experience relevant to the issues;
• The proceedings can be held in private and confidentiality may be preserved, subject to the Access to Information Act and Privacy Act;
• The cost of the proceedings can be more affordable;
• Due to increased control of the process, there can be a greater opportunity for settlement; and arbitral awards are binding under the Arbitration Act.
• There is a mediation option that can be used at any point in the resolution of the decision

Disadvantages of arbitration:

• The success of arbitration can be largely dependent on the experience of the arbitrator;
• Arbitral awards are not of legal precedential value;
• Recourse against an award is very limited;
• May not suit all types of family disputes;
• Time and cost can be significantly affected by a lack of co-operation of the parties or poor process design, or by lack of availability of an arbitrator

I am an arbitrator that specializes in family arbitration. With the recent partnership of DDRIOC and FDRIO this is a great opportunity for you to take a look at some of the courses that FDRIO offers when it comes to family arbitration and family mediation.

https://fdrio.ca/certifications/

When in the arbitrator role, screening for power imbalances, including family violence, is mandated under the Arbitration Act. Its purpose is to help ensure that clients being diverted into for-profit private adjudication are appropriate candidates for the process. Screening helps protect clients from the risk of abuse and violence before, during and after an arbitration, and it helps inform arbitrators when deciding whether to take a case and, if so, how to best structure the process. Family arbitration matters involving children must be decided in the best interest of the child (see section 24 of the Children’s Law Reform Act). Arbitrators must report any signs that a child has been abused or needs protection to police or a child welfare agency.

FDRIO’s policies require family arbitrators to work with qualified and experienced third-party screeners in those cases where they have not conducted their own screening, eg: when they are acting as an arbitrator alone.

Take a look at the FDRIO website for more information: https://fdrio.ca/certifications/qfas/

Where the dispute resolution process is mediation-arbitration (Med-Arb), the Med-Arb conducts their own screening process prior to starting the mediation. The Med-Arb process is — in short, first try to mediate with the parties and if you get stuck on some issues, you can then arbitrate the remaining issues.

Stay tuned for more courses and offerings from DDRIOC in Family Mediation & Arbitration!

References

(2021, August 2021) Family arbitration Government of Ontario https://www.ontario.ca/page/family-arbitration

(2022). Certified specialist in Family Arbitration. https://fdrio.ca/certifications/fdrp-arb/