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Family Arbitration | Divorce Arbitration

Family arbitration is like having a private judge, chosen by you and your former partner/spouse, to settle your family law dispute for you. It is a process that is growing in popularity for several reasons. It is, however, not the right process for everyone and anyone considering family arbitration (also called divorce arbitration) should do a lot of research before doing so because family arbitration is legally binding, meaning a family arbitrator’s decision is final.

When relationships and marriages break down, people usually try several ways of settling matters with each other. Those ways often include attempts to negotiate a deal directly with each other; working with a family mediator; and/or retaining family lawyers to negotiate a deal, including collaborative family lawyers.

When all of those efforts have failed to result in a settlement, parties are left with three options: go to court, do nothing or hire an arbitrator for family arbitration.

Going to Court Versus Family Arbitration

There are many benefits to going to court. They include:

  1. Court is free. You can represent yourself and pay nothing other than court fees.
  2. Legal Aid Ontario provides limited summary legal advice to those who qualify in court. Ontario’s Duty and Advice Counsel are a great free resource for the public.
  3. Family mediation is free in court. Ontario funds free court-based mediation for all disputes, including family mediation. The mediators are regulated and insured and must meet strict standards. Free, in-court, on-site family mediation is available at mediate393.com
  4. Many other free services are available in Ontario’s courts, including domestic violence support, and Family Law Information Centres (FLICs) with resource specialists who are dedicated to helping families experiencing separation and divorce. Here is a searchable database to locate a FLIC near you.
  5. There are police and security in the courts, which can provide safety and peace of mind if domestic violence is a concern.
  6. Free translation can be available in the courts.
  7. The 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.
  8. Last but hardly least, our family court judges are of the highest calibre. 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. You are getting high quality justice, for free, when you go to court.

In court, a judge can make an order that the other party must obey or else they could be found in contempt of court and, in some cases, go to jail if they do not. Judges can make immediately enforceable, no-contact orders, financial production orders, orders for possession of a home or orders to preserve property from being dissipated. Court orders are immediately enforceable. For people who have separated from an ungovernable or dangerous person, the courts provide valuable protection and service, for free.

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Disadvantages of Family Court

However, there are also disadvantages to going to court. It is well known that the adversarial nature of the court system brings out the worst in people. It can 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. Research suggests that domestic violence can escalate just because parties consult with lawyers, receive legal letters, affidavits or negative results from the court. Courts do not always keep people safe.

Litigation creates a winner and a loser. This is not healthy for human 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 the experience. Equally important, many people who have been through family law trials not only disagree with a judge’s decision, but they also resent a decision that will affect them for a very long time being imposed on them.

And having a lawyer for court can be very expensive. Research shows that legal fees for family law cases range from about $12,000 for low conflict matters to over $50,000 for more complex cases. And often it is much higher than that. Few can afford this cost.

The courts are challenging places for those without legal representation, as is the case for at least half of all litigants. As good as the Legal Aid Duty and Advice Counsel are, their mandate and funding is very limited, and they are not always able to help.

And going to court, no matter how strong your case, is a gamble. There is no guarantee that a judge will agree with you or your lawyer. If you lose, you will end up not only paying for your own lawyer (if you have one), but at least a part, and perhaps a very large part, of the legal fees of the other person.

Children rarely benefit from having their parents fight in court, according to Psychology Today Magazine. Family resources are often drained to pay for the fight— money the children no doubt could use. Research has been clear now for a very long time—children are almost always better adjusted and happier if their parents just stop fighting. And they are often damaged for the rest of their lives if they experience extensive parental conflict. Unless the matter involves domestic violence, coercion and control, child abuse or other dangerous behaviour, children usually love both parents equally and want them to be happy and move on. Children often blame themselves for parental conflict and carry the guilt and shame and confusion for many years.

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 court-room steps, often for a proposal that they could have accepted at a much lower cost many months or even years ago. It is a painful experience for many and people should be very sure that going to court is their best option before they begin.

Family Arbitration is Private, Confidential

Family arbitration is one option for removing matters, finally, in a binding way, without going to court. Like court, it has its pros and cons.The family arbitrator is chosen by the parties. They agree on what they want the family arbitrator to decide. They must negotiate an Agreement to Arbitrate and each get independent legal advice.

It is important that parties fully understand how the process works. In family arbitration, they will each have the chance to tell their story to the arbitrator, give their evidence and make their arguments for their case. They will each have the chance to hear and respond to the other person’s case. After hearing all the evidence and arguments, the family arbitrator will make a decision called an Award. It is a final and legally binding decision. The parties will, under the law, have some rights to appeal a decision they do not like.

For many who choose family arbitration, a key appeal is the fact that the process is confidential. Unless there is an appeal, the entire process will remain private unlike Canada’s open court system. Family arbitration has many advantages: it keeps the details of your dispute confidential (in Ontario, we have an open court system where people not related to you can go to the courthouse, pay for photocopies, and get the details of your separation or divorce).

Family Arbitration is Generally Faster and Less Expensive than Court

Family arbitration can be faster and less expensive than going to court. It can be empowering for parties to choose their own decision-maker. Family arbitrators are often senior and experienced family lawyers. They are required to take certain training—including how to screen for power imbalances and domestic violence—and must comply with other requirements established by the Ministry of the Attorney General.

The process can be more informal, less intimidating, and more focused and productive than a court hearing as family arbitrators have more flexibility in structuring and managing the process. Family arbitrators do not have to apply exactly the same strict rules of evidence that a judge must apply, giving parties in many cases a greater ability to feel heard and to feel fairly treated.

Risks of Family Arbitration

But there are risks with family arbitration. Family arbitrators, as well trained and skilled as most are, can misjudge whether a case is suitable for this private, intimate process. If there is a safety risk (risk of domestic violence), it is far greater in a private and closed process like family arbitration. If a person is too fearful to tell the truth, the process can result in outcomes that are not in the best interests of children. Family arbitration agreements are binding, meaning if a person later regrets the decision to hire an arbitrator, they cannot simply quit the process and go to court. Unless they are “screened out” by the family arbitrator, they must continue with the arbitration process, regardless of the cost or their unhappiness with the process. If a party is not participating in good faith, or one person stops paying the arbitrator’s fees, arbitrators can and do resign. This can be prejudicial to one or both parties, forcing them to start over. It can do harm by escalating the emotions and tension they had come to family arbitration to resolve. Family arbitration is generally not appropriate in cases of extreme power imbalance, or where one party is afraid of the other. Here is an important screening document we use at Riverdale Mediation:  Top Ten Questions about Screening for Power Imbalances and Domestic Violence in Mediation and Arbitration. Arbitration awards are not quite as easy to enforce as court orders. And family arbitrators do not have all the powers of a judge; for instance, an arbitrator cannot find a person in contempt of court for failing to comply with an agreement or award. None of the supports and resources available in the courts are available to parties in arbitration. And, of course, family arbitrators are often quite expensive. To recap, each person must carefully weigh the pros and cons of choosing family arbitration.

FAQ

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 professionals 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 or certified by one of the Ontario Association of Family Mediation, ADR Institute of Ontario, Family Mediation Canada or Family Dispute Resolution Institute of Ontario. 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. Two organizations have established designations for professional family arbitrators: the ADR Institute of Ontario and the Family Dispute Resolution Institute of Ontario. You should ensure that your mediator-arbitrator has appropriate training, experience and professional liability insurance.

Are lawyers required for med-arb?

It is very wise to have a lawyer (also called “independent counsel”) 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 their own legal representative (or lawyer).

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.

Mediation in depth

Riverdale Mediation has many articles on mediation. Start with one of the ones below, or browse all articles in the mediation category.