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Screening for Family Arbitration

Family arbitration is an excellent choice for many separating couples, but it is not helpful in all cases.

There are many situations where an arbitration process could do harm to a client, a child or another family member if it is not an appropriate process choice for that family.

For instance, if there is a substantial power imbalance resulting from the inability of one client to retain legal counsel, court may be a better choice for the family where legal advice is often accessible. If one client has substantially more money than the other, arbitration could cause an injustice based on one client’s better ability to afford to pay a private arbitrator.

If there are vulnerable children who could be impacted by an arbitrator’s decision, and neither parent can afford to retain a lawyer for those children, it may be in the child’s best interest that a court resolve the dispute, where free resources are available to support families. If one client is unable to fully participate because they are afraid of the other person, the family may be better served in court where more resources are available to support both parties and the children. Or if the situation is one that cries out for judicial intervention, such as a question of public health, an arbitrator may be ethically obliged to recommend the matter be addressed in a publicly accountable court process.

For a good article “Is Family Arbitration Right for Every Case?”, read more here.

As a result, under Ontario’s Arbitration Act, it is mandatory that all family arbitrators certify that both clients have been appropriately screened for power imbalances and domestic violence before they agree to act as the arbitrator.

As arbitrators and parenting coordinators, we take this responsibility seriously. Arbitrators and parenting coordinators have a legal responsibility to ensure that both clients are appropriate candidates for these private, sometimes costly services. We want to ensure that, to the best of our ability, we have done that.

When we provide parenting coordination and mediation-arbitration services, we take the step of conducting the initial screening/assessment for suitability ourselves. But where the service is arbitration alone, under the law, we must rely on a third party for this crucial step.

Some arbitrators are comfortable accepting the assurance of each client’s lawyer that the parties have been screened. We do not believe that is enough given the harm that can be caused when private adjudication proceeds in cases where it may not be the best choice for the family.
And our experience has told us that taking the time to do this step right offers many benefits to the clients and counsel too.

In order for this step to be effective for clients and arbitrator alike, we therefore follow the best known practices for third party screening. (Read more here about standards of screening in family arbitration.)

When we are retained to conduct third-party screening, these are the steps we follow. 

Steps in Screening for Family Arbitration

  1. Both clients complete the confidential Intake Form for Third Party Screening for Family Arbitration.
  2. Both clients sign the Consent to Third Party Screening.
  3. We will meet with each client, separately for a confidential meeting that will take between 1-2 hours. We will generally charge a flat rate of one hour of our time, unless the matter is very complex.
  4. We will provide the arbitrator, in confidence, a Confidential Screening Report. This report is NOT shared with the other party nor with counsel, and is intended to assist the arbitrator strictly in complying with their legal duty to assess whether the case is suitable for private adjudication.

If you have any questions, please contact us at [email protected].

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