Arbitration is a consensual process in that both parties must agree to arbitrate. The arbitrator, after considering the evidence and arguments will make a final and binding decision called an award. There is a limited right of appeal to the courts.
The parties who are negotiating a separation agreement, may specify
arbitration as a method of resolving disputes arising from their agreement. Parties who do not have an agreement in place, may refer one or more issues for determination by the arbitrator. Arbitrators, who are lawyers, can deal with the full range of property, parenting time, child and spousal support issues arising from separation or divorce, except of course the divorce order which must be made by a judge.
Arbitration can be an effective way of determining a family law dispute. The arbitrator will case manage the process with the parties or their counsel and tailor the process to ensure that the process best meets the needs of the parties for a cost effective and fair hearing. There are a variety of options for arbitration which include documents only, final offer arbitration and arbitration with oral hearings with examination and cross-examination of witnesses.
Any oral hearing is private. The decision is not reported anywhere. Unlike the courts, there is a fixed, known date on which your case will be heard. We do not double book hearing dates, so your case will never be postponed because I am not available on the hearing date. An arbitrator can award the full costs of legal representation which is not often available in the court system. An arbitration hearing can often be heard more quickly than the case would be heard by going to court.
There have been changes to the Family Law Act, which allow more effectively for family law arbitration. Before an arbitration can proceed both parties have to agree to and participate in family violence screening (FLA, s. 8). This will mean meeting with a screener and answering questions. If you and your former partner are interested in arbitration, both parties must attend for an interview by a screener. Each interview will be conducted in private and the screener will provide a brief report to me about whether the case is suitable for arbitration and whether conditions should be imposed to facilitate the safe use of the arbitration process by both parties. The information provided to the screener by you will only be used for the purpose of determining whether the arbitration should proceed, under what conditions it should proceed, and the information is not evidence that can be used to decide the merits of the dispute. Some cases may not be amenable to arbitration.
I note that it is important that both parties approach arbitration in a good faith manner. The Arbitration Act (s. 2.1(3)) provides that arbitration agreements or awards arising from a family law dispute . . . “ may be set aside or replaced by the court under the Family Law Act if the court is satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a party took improper advantage of the other party’s vulnerability, including the other party’s ignorance, need or distress;
(b) a party did not understand the nature or consequences of the agreement;
(c) other circumstances that would, under the common law, cause all or part of a contract to be voidable.
(4) A court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the arbitration agreement with an order that is substantially different from the terms set out in the arbitration agreement.