The crisis in access to family law justice has led to many great things happening outside of court.
Collaborative practice, for example, has grown from disenchantment with the adversarial legal system’s assumption that positional bargaining necessarily protects the interest of parents and their children. Family mediation has become the go-to solution for both the public– seeking to avoid paying lawyers– and government— seeking to reduce the costs of providing family law justice.
In many jurisdictions, mediation-arbitration is increasingly seen as a pragmatic and cost-effective dispute resolution process option for those seeking the combined benefits of interest-based negotiation premised on self-determination, and the “back up” security of a reliable and fair decision-making mechanism should negotiations fail.
In some ways, med-arb, as it is known, is a higher-commitment version of open mediation in the litigation context, where the mediator may report to the court on what happened if a settlement is not reached. People who decide to try mediation to resolve litigation may opt for open mediation when they do not trust the other person to negotiate in good faith. They feel they need the security of report to the court to keep the other person honest.
Likewise, there are fundamental similarities between med-arb and collaborative practice. In both, there is a dire consequence if the parties do not reach an agreement. This dire consequence— in the case of collaborative law, the expense of retaining new counsel, and in med-arb the requirement to participate in an adjudication— becomes itself an impetus to settle.
And so med-arb fits nicely in the continuum of evolving conflict resolution processes that are being developed, designed and refined to respond to contemporary access to justice challenges.
Med-arb is wholly private. Parties enter into a contract with the mediator-arbitrator. Ideally they will choose the one that best meets their personal needs, as the ways in which professionals deliver med-arb services vary widely. Not all mediator-arbitrators are family lawyers— many are mental health and family professionals whose expertise in child matters gives them authority. Some operate formally, others less so. Some require lawyers to be present, others do not. Some offer opinions in the mediation phase; others choose to carefully avoid any comments that might undermine the arbitration phase should it occur. Some will use caucusing in the mediation phase; others will not.
Aside from the limited requirements imposed by Ontario’s Ministry of the Attorney General in 2007, family arbitrators are free to design their mediation and arbitration components as they and the parties wish. This allows for enormous flexibility in process design, which in turn means that med-arb, in theory, offers great opportunity for separating couples who do not find direct negotiation between helpful. And it can be the best process for unrepresented parties if the mediator-arbitrator is skilled in working with those without counsel and practices in a way that ameliorates the risks arising from power imbalances inherent in such a process.
What are the benefits of family mediation-arbitration?
1- parties can work with a decision maker they trust. In a recent panel discussion at an ADRIO/FDRIO/Osgoode Professional Development program, former Chief Justice Warren Winkler described med-arb as the process requiring the highest professional trust and I think he is right. Mediator-arbitrators work intensely and closely with parties in a mediation, often spending time with them privately for screening for power imbalances and family violence (one of the unique requirements for family arbitrators under the Arbitration Act Regulation), and learning their respective procedural needs, and also often working with them separately in caucus during the mediation to better understand what they need substantively. If the parties trust your professionalism and integrity, they will be more inclined to accept your eventual decision, if you make one— even if they don’t like it.
2- parties (and their counsel) can design the process in a way that suits their needs. If the mediation fails, they can consent to using any part of that process in the arbitration. They can agree on using agreed facts and documents, affidavits, and reports in an efficient way. The Statutory Powers and Procedures Act applies to arbitrations, meaning the rules of evidence can be more flexible as is appropriate. The process is intimate and empathetic, giving parties— especially those without lawyers— the sense that they have participated in something meaningful and cost-effective.
3- family arbitrators are generally very well trained and highly experienced. They know how to make and write good decisions, and are able to focus as much time on the case and writing the decision as the parties need— making the process more time responsive, in many cases, than court. There are no long wait times for a court date, no paying your lawyer to sit in court waiting to be heard by the judge. This is, when well done, a highly efficient and responsive process.
There are also challenges with family mediation-arbitration. Because it is a high-commitment process, it is critical that those providing the service take time to assess whether the parties and the process are in fact well suited for each other. (Under Ontario law, family arbitrators have a duty to assess whether the case is appropriate before and during the arbitration process.) People who are ungovernable, or where a party is afraid of the other, those who are manipulating the process to extend their control over the other person, or those who are incapable of complying with procedural requirements or substantive decisions— these are the cases that should not be in a high commitment process like mediation-arbitration because they are likely to fail. When an arbitration fails, the parties are left in the worst possible situation—with no progress made and often no money left.
Family mediation-arbitration is a highly skilled process offering great promise for the right people in the right circumstances. Those seeking to work with a mediator-arbitrator— whether they have counsel or not— would be wise to ask many questions about the process and the proposed mediator-arbitrator before signing a contract.
