Our Team
We are a group of a retired family court judge and family lawyers.
Hilary Linton has been arbitrating since 2006. Cliff Nelson is a retired Superior Court judge. Avagene Skervin and Borzou Tabrizi work regularly as mediator-arbitrators in a wide range of matters. And we teach a leading course on Family Arbitration.
What is Family Arbitration?
Family arbitration is a private, confidential, out-of-court process.
Arbitrators must give each party an opportunity to make their case and an opportunity to respond to the other party’s case, just like a judge. They must be impartial and they must be fair.
Family arbitrators receive evidence and arguments from all parties, either orally or in writing. They must make their decisions based on the evidence before them.
Ontario law requires appeal rights for all arbitration decisions. All parties must first be screened for suitability for private adjudication. Independent legal advice is required on the Arbitration Agreement.
These features minimize the risk of prejudice or harm to a party or child.
More Potential Benefits of Family Arbitration
- you do not need to have a lawyer present at the hearing (but we recommend it)
- the procedure is designed to meet your family’s needs
- it is confidential unless there is an appeal
- parties share the cost of the arbitrator
- the process can be expedited, with agreed limits on witnesses and the amount of time each party has to present their case
- it can be done by affidavit or on the basis of documents alone
- it can be less intimidating and less formal than court
Why Arbitrate?
Family arbitration has come a long way since it was first regulated by the Ontario government in 2007.
Our arbitrators are trained and experienced in designing and delivering manageable, affordable arbitration.
For many families, arbitration can make emotional, practical and financial sense. It also can be easier on their children, given the fact that litigants do not make good co-parents.
The adversarial court system tends to escalate and aggravate the very emotions parties are trying to settle and move past. People can feel insulted, wronged, hurt and taken advantage of by the court process, particularly if they feel they have not been heard fully or properly.
Litigation creates a winner and a loser. This is not healthy for family relationships. Courts rarely address the real issues that are driving the conflict, the things that really matter to people, because that is not their job.
People who go to court, even when they win, often feel dissatisfied with and drained by the experience.
We often see clients after they have spent hundreds of thousands of dollars in legal fees in court, without a result.
The courts are challenging places for those without legal representation, and equally challenging for litigants who have a lawyer but the other party does not.
Litigation can take a very long time, frequently years. Parties often go through all the stress and expense of a court battle only to settle on the eve of a trial that they have paid their lawyer to prepare for. It is a painful experience for many and people should be sure that going to court is their best option before they begin.
Arbitration cannot solve all of these problems. But it can address many of them, effectively and in a way that is acceptable to both parties.
Articles on Family Arbitration
Is Arbitration Right For Me?
Arbitration is not for every case. Judges can do things that arbitrators cannot. Courts offer some benefits that arbitration cannot. Here are some things to consider before you make your decision.
- Court is free. You can represent yourself and pay nothing other than court fees.
- Legal Aid Ontario provides limited summary legal advice for litigants in some courts.
- Family mediation is free in court. Find your local mediation service provider here.
- Family Court Support Workers are available in most courts to support survivors of family violence.
- Courts have Family Law Information Centres where litigants can find supports and resources.
- There are police and security in the courts.
- Free translation is available at court.
- Courts are open and public, which makes them accountable. This can be reassuring for people who feel that the other person is not acting in good faith.
- Every judge has met a known, high standard. Judges attend regular continuing education in family law. Judges sitting in family court care deeply about the families whose lives they affect.
- A judge can make a contempt order against a party who is not complying with an order. This can make court can be a better option where one party is “ungovernable”, meaning they may not be cooperative with the requirements and decisions of the arbitrator.
- Judges can make immediately enforceable restraining and no-contact orders. They have overriding jurisdiction for the well-being of children. They can order the Office of the Children’s Lawyer to represent a child.
- Arbitration is not inexpensive. It can take several hours of legal time simply to finalize the terms of the Arbitration Agreement.
- Once you have been screened to be suitable for arbitration and have signed an Arbitration Agreement, you are bound by that agreement. Unless the arbitrator screens the matter out of the process at a later date, resigns or is released by both parties, you will be bound to the process.
Frequently Asked Questions
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.
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.
What are the requirements to be a mediator-arbitrator?
Family mediation is not regulated in Ontario. Our mediators are all accredited by the Ontario Association of Family Mediation. We are also all mediation trainers, which keeps us current with best practices.
We are also arbitration trainers, teaching a leading Ontario course each year. We meet or exceed any requirements for family arbitrators.
Family arbitration is regulated under the Arbitration Act, Regulation 134/07 of the Arbitration Act and the Family Law Act. Family arbitrators must:
- Have taken at least 14 hours of training in screening for power imbalances and family violence.
- Take at least 10 hours of refreshed training every two years, with five of those hours relating to family violence issues.
- Be family lawyers or have taken at least 30 hours of family law training.
- Ensure that each party has been screened for suitability for private adjudication, before they sign the Arbitration Agreement.
What is screening for power imbalances?
The regulation under the Arbitration Act requires arbitrators to satisfy themselves that both parties are good candidates for private adjudication. This requirement is met by having the mediator-arbitrator meet with each party in private, before they agree to med-arb, for a confidential ‘screening’ meeting.
In this meeting each party can explain any concerns they have so that the mediator-arbitrator can consider how to best design the process. In some cases the decision will be that mediation-arbitration is not appropriate, or should be delayed, or that other steps should be taken first. Screening is an ongoing obligation of the mediator-arbitrator.
