Family arbitration is a very different process from mediation, and yet they are often confused. Arbitration is a process whereby the parties present their version of the story before a privately-retained arbitrator, often a senior family lawyer, who hears the evidence, applies the law and makes a binding decision. To explore other ADR process options, read our recent blog posts.
Arbitration is therefore, more like court than it is like mediation. However:
- Unlike court, which is open to the public, arbitration is confidential; the parties agree that the record of the arbitration will be kept in confidence unless there is an appeal
- Unlike court, arbitration is not free. The parties pay the arbitrator they choose. Arbitration can be expensive, depending on how complex the matter is, how cooperative the parties are and how experienced the arbitrator is.
- Unlike court, parties in arbitration can limit their appeal rights. Some appeal rights must be available, but parties can restrict their right to appeal.
- Unlike court, parties coming before an arbitrator must first be assessed for suitability. This is the same screening process as that done by mediators. The purpose is the same: to identify, assess and manage power imbalances that could negatively affect either party in a private FDR process, in particular any risk that a party, a professional or a child might be harmed before or during the arbitration process; to ensure that parties are participating voluntarily and to assess whether they are suitable candidates for a private and expensive process. (See Arbitration Act & Regulations and FDRIO Standards of Practice for more information).
- Arbitration must follow the basic rules of due process, but it can be much less formal than court. Parties are free to design a process that best meets their needs, subject to certain requirements imposed by the Arbitration Act and the Family Law Act.
- Depending on the jurisdiction , arbitration can provide parties with a resolution much faster than going to court.
Arbitration is a popular process in some jurisdictions. for some cases, such as highly complex financial matters that require specific expertise. Arbitration can be a very fair and effective process. However, as with all processes, it is critical that candidates for family arbitration are carefully screened before they commit to the process as, arbitration can be prejudicial to parties who are not suitable candidates, particularly where there are significant unknown power imbalances.
For more information about the arbitration process, visit the resources below: