One reason many clients and their lawyers prefer private family arbitration to court is the flexibility and procedural adaptiveness of family arbitration. Arbitrators have the ability to structure their processes in ways that meet the needs of each set of clients and the issues before them. Parenting coordinators utilize a broad range of procedural strategies to manage conflict in the best interests of the children.
But all family arbitrators are required to deliver natural justice. This requires them to understand the rules of evidence, and to know how to manage the evidence in each case in a way that provides due process.
The ability to deal with the quantity and quality of evidence in a manner which facilitates the identification and analysis of relevant issues is a critical competence of every parenting coordinator and family arbitrator. We spend considerable time in our 40-Hour Family Arbitration Theory and Practice course on this subject; and we have designed two separate streams for the parenting coordinators and the lawyer-arbitrators to allow students to develop their skills in their chosen practice area.
Here are some of the competencies we teach:
a. Ability to organize and analyze data
- develop an overall perspective of the case
- understand the sequence and nature of events contributing to the dispute
- organize data into logical principles or legal concepts
- determine the most effective and efficient way to utilize the evidence to complement the process
b. Ability to identify documents required to assist the arbitration
- identify the factual evidence from the data provided by the parties
- identify those documents necessary to the arbitration and make appropriate requests for them to be made available
- note the absence of any relevant evidence
- distinguish between material and non-material
c. Ability to differentiate between different types of evidence
- understand the difference between direct and cross-examination of a witness
- note any absence of oral evidence where it may be desirable
- note any problems with the completeness or accuracy of documentary evidence
- understand the definition of hearsay evidence and admit/weight it accordingly
- separate legal and emotional issues identify circumstantial evidence and weight it accordingly
d. Ability to differentiate the value and reliability of evidence
- observe and seek to accurately interpret the nonverbal demeanor of witnesses
- note ambiguities and inconsistencies in the evidence
- identify corroborative evidence
- attempt to test the consistency of own observations against the facts submitted
- do not utilize information or technical knowledge gained outside of the hearing, to assess balance of probabilities without consent of all parties
e. Ability to make inferences
- determine inferences that can be properly drawn from data presented or omitted
f. Ability to deal with expert evidence
- identify need of expert evidence
- understand the significance of expert evidence
