Mediation-arbitration is an increasingly popular process choice for resolving the issues that need to be settled after separation. Some commonly asked questions are answered below:
1. What is mediation-arbitration?
2. Does the same person act as both mediator and arbitrator?
3. What are the benefits of med-arb?
4. Can anyone act as a mediator-arbitrator?
5. Are lawyers required for med-arb?
6. What is meant by “screening” for power imbalances and domestic violence?
7. What are the disadvantages of med-arb?
- What is mediation-arbitration?
In mediation, the parties meet with a trained and experienced professional mediator, who assists them with the negotiation of the terms of a settlement. In arbitration, a trained and experienced professional arbitrator hears evidence and argument from both parties and then makes a decision based on that evidence and argument. Mediation-arbitration (or med-arb) combines the two processes into one. The parties must sign a mediation-arbitration agreement before they begin the mediation phase so that they are aware of the process and its implications from the start.
- Does the same person act as both mediator and arbitrator?
The same person may act as both mediator and arbitrator. The parties may also wish to select different people to act in the different roles. There are many good reasons for choosing one over the other, depending on the issues, degree of conflict between the parties, and skill set of the professional’s chosen.
- What are the benefits of med-arb?
People choose med-arb for many different reasons:
- Med-arb works very well if both parties and their lawyers have confidence in the ability, professionalism, skill, judgement and integrity of the mediator-arbitrator. It enables the parties to work effectively in a constructive mediation process and then have any unresolved issues decided by a person in whom they both have confidence. It is much easier for them both to accept the outcome of the arbitration if they know and trust the arbitrator. Many parties return to the same mediator-arbitrator for the resolution of future disputes.
- Sometimes people feel that either they or the other party (or the lawyers!) need the pressure of an ultimate decision-maker in order to participate in mediation constructively.
- Sometimes the parties are frustrated by the time and expense of the court process, and they feel that med-arb will be quicker.
- Mediation and arbitration are confidential, of-the-record processes. This appeals to people who do not wish their case to be resolved in public.
- Med-arb is a more personalized approach to conflict resolution than using the courts. Parties using med-arb processes are free to design the process to suit their timetables, budgets, and other needs, subject to the requirements of the Family Law Act and the Arbitration Act. This can allow for a streamlined, efficient hearing process that satisfies both parties.
- Although the law requires all arbitration agreements to allow rights of appeal, parties can limit those rights, resulting in more finality than they would otherwise have in the courts.
- Can anyone act as a mediator-arbitrator?
Mediation is not regulated, although it is wise to work with a mediator who is accredited by either the Ontario Association of Family Mediation (Acc.FM) or the ADR Institute of Ontario (Chartered Family Mediator). Family arbitration has become somewhat regulated recently, with the passage of provincial law regulating certain aspects of family arbitration practice. Family arbitrators must be trained to screen for power imbalances and domestic violence, must keep their training in this area updated, and must belong to any organizations required by the Attorney General. Family arbitrators who are not also lawyers must, as well, take at least a 30 hour course in Ontario or Canadian family law. For more information on the regulation governing family arbitration in Ontario, visit the site of the Attorney General, www.attorneygeneral.jus.gov.on.ca/english/family/arbitration.
- Are lawyers required for med-arb?
It is very wise to have a lawyer if you are considering using a med-arb process. The med-arb agreement contains terms that should to be negotiated by lawyers. Because this is an out-of-court, private process, it is strongly suggested that parties will be much better served if they have legal representation.
- What is meant by “screening” for power imbalances and domestic violence?
Screening is a process undertaken by mediators, mental health professionals, law enforcement professionals, medical professionals, and anyone else working with people in vulnerable circumstances. The purpose of screening in the med-arb context is to ensure that each person is able to fully participate in the process in a way that is emotionally and physically safe for them and for any children involved. Accredited family mediators are required to screen all clients before beginning a mediation process, and the regulation under the Arbitration Act requires all arbitration clients and med-arb clients to be screened as well. For more information on screening in mediation and arbitration, see “Top Ten Questions About Screening in Mediation and Arbitration”.
- What are the disadvantages of med-arb?
Med-arb is not appropriate for all cases. Here are some situations in which it may not be appropriate:
- If the conflict is very high, or if the personalities are very difficult, it may be impossible for them to have confidence in the process. This could result in a process that ends up taking much longer and being much more expensive than if they had used the public courts. It is important that the parties are “governable”.
- Med-arb is a complex and challenging process. It is important that the person acting as mediator-arbitrator be skilled and experienced in arbitration law and practice.
- Med-arb is an evolving area of practice. Although the Ontario Court of Appeal has specifically endorsed the process, some questions around best practices remain unresolved. For instance, there is not a consistent practice for screening prior to med-arb processes and these issues have not been addressed to any significant degree by the courts as the regulation requiring screening is recent and vague in some respects. These uncertainties arguably leave the awards resulting from med-arb processes more vulnerable to legal challenges.