Excerpts from Family Arbitration: Perspectives of a Practitioner and Trainer – Part 2 of 3

These excerpts are taken from Family Arbitration: Perspectives of a Practitioner and Trainer, written by Richard W. Shields. This content will be part of the upcoming 40-Hour Family Arbitration Law & Skills training. Learn more here.

The Arbitrator

The roles of the arbitrator in an arbitration vary depending upon whether the parties choose to proceed with a hearing. In any arbitration, there are three distinct stages – before the hearing, at the hearing, and after the hearing – described as follows:

Before the Hearing (select excerpts)

Interview prospective parties to inform them about the process, if not previously informed by their lawyers; in a family arbitration, refer the parties to an appropriately qualified professional to screen them for power imbalances and domestic violence; in a family mediation-arbitration, screen them for power imbalances and domestic violence; prepare the agreement to arbitrate…

At the Hearing (select excerpts)

Open arbitration by welcoming and seating the parties and their lawyers; invite opening submissions; administer oath or affirmation to witnesses; receive documents tendered as exhibits; rule on admissibility of evidence

After the Hearing (select excerpts)

Review evidence or final offers and arguments; make disposition of issues; prepare award with reasons; deliver award; respond to requests for amendments or additions…

The Roles of the Lawyers

The roles performed by the lawyers in an arbitration parallel those in a mediation at the outset when they assist their clients in its selection from the array of dispute resolution processes available to them. At such time as a decision is made to proceed with arbitration, the lawyers will then likely be called upon to select a qualified arbitrator. After screening and the determination that arbitration is an appropriate process, the lawyers will review the agreement to mediate or mediate-arbitrate prepared by the arbitrator. In family arbitrations, the parties must obtain independent legal advice before they sign a Family Arbitration or Mediation-Arbitration Agreement. The lawyers will prepare for and attend upon a pre-arbitration conference or hearing to plan the process. They will draft Statements of Facts, Issues, and Positions, assemble the documents upon which they rely, and create their Arbitration Briefs. The lawyers are the principal participants at the hearing: they question witnesses; they tender documents; and they make final arguments or submissions. On receipt of the Award, the lawyers may deem it necessary to request amendments or additions. A lawyer may arrive at the conclusion that the arbitrator mishandled the conduct of the arbitration and make application to court to have the Award set aside. Alternatively, he or she may believe that the arbitrator made an error in law or fact and decide to appeal the award. Finally, a lawyer will prepare the documents required to obtain an Order of the court incorporating the Award and seek to enforce it if necessary.

 

All content © Copyright by Richard W. Shields (2017).
Contents may not be reproduced or provided to others without the written permission of Richard W. Shields.

About Richard Shields

Richard Shields began his ADR practice in 1994 with family dispute resolution as his primary area of focus. He joined the ADR Institute of Canada and its Ontario affiliate, the ADR Institute of Ontario, Family Mediation Canada, the Ontario Association for Family Mediation, and the Association of Family and Conciliation Courts. Rick participated in the pilot project team that developed the Family Mediation Canada certification program and he became their first Certifying Administrator. Rick is a past president of the ADR Institute of Ontario and the Ontario Association for Family Mediation. He is a co-founder of a new family dispute resolution organization, the Family Dispute Resolution Institute of Ontario, of which he is a member of their board of directors and executive committee and a co-chair of their Family Mediation and Family Arbitration Sections. Rick holds various professional designations. He is a Certified Specialist in Family Law, conferred by the Law Society of Upper Canada. Rick is also designated as a Certified Comprehensive Family Mediator by Family Mediation Canada; as a Chartered Mediator and Chartered Arbitrator by the ADR Institute of Canada; as a Certified Family Mediator and Certified Family Arbitrator by the ADR Institute of Ontario; and as an Accredited Family Mediator by the Ontario Association for Family Mediation. In his capacity as a co-chair of the Family Mediation and Family Arbitration Sections of the Family Dispute Resolution Institute of Ontario, he is assisting in the development of their professional designations.

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