Effective family arbitrators have the ability to conduct matters using fair, flexible, proportionate and effective procedures. In our 40 Hour course in Family Arbitration Theory and Practice for arbitrators and parenting coordinators, we teach these skills through lectures, demonstrations and coached role plays in small groups. These skills include:
a. Ability to clearly establish understandings
- clearly explain the role of the arbitrator and unique aspects of family arbitration
- clearly define and explain the rules of procedure
- in cooperation with the parties, estimate time that will be required
- build and maintain trust of parties
b. Ability to determine legitimacy and jurisdiction
- ensure the issues in dispute are covered by the arbitration agreement and that jurisdiction is clearly and fully defined
- ensure parties understand scope and limitations of arbitral jurisdiction
- ensure that Arbitration Agreement is compliant with the Arbitration Act, and Reg. 134/07
- ensure parties and counsel understand and respect purpose and treatment of screening procedures
- ensure parties and counsel understand confidentiality and exceptions (s. 125 CYFSA and imminent risk of harm to anyone)
c. Ability to make procedural adjustments to accommodate risk and power imbalances and changes to power dynamic during the arbitration
- procedurally responsive to risk and power balance assessment made prior to Arbitration Agreement
- have protocols to ensure ongoing responsiveness to power imbalances including IPV
- respond appropriately to events that take place before and during the process that indicate changes in risk and power assessment
d. Ability to deal with preliminary matters
- hold preliminary meeting/s if required or requested
- provide detailed and useful Directions following pre-arbitration planning meeting/s
- establish agreed-upon or determined procedural steps and timelines
- require parties make available to the arbitrator and the parties all relevant information in accordance with established timelines
- require compliance with preliminary procedural Directions
- determine if legal counsel, witnesses, experts or other parties will be involved
- appropriately anticipate and respond to requests to have supporters present
- address exclusion of witnesses as appropriate
- maintain proportionality
- ensure parties have a clear understanding of how the arbitration will be conducted and the award issued
- specifically canvass cost and time–saving options such as Requests to Admit and Agreed Facts, Documents and Law
- ensure all procedural steps have been completed as required and seek agreement wherever possible
e. Ability to handle interim matters
- process is appropriately responsive to urgent circumstances
- due process is delivered in appropriate manner
- hear parties’ arguments
- characterize and decide the points of issue
- ability to not get distracted or bogged down in interim matters
f. Ability to conduct a fair hearing
- afford each party equal and proportionate opportunity to present their case
- if examination is requested or required, allow each party an opportunity to examine the other party’s witnesses
- allow parties to make and respond to objections
- allow parties adequate opportunity for rebuttal
- allow parties adequate time to deal with surprises; provide adjournments and costs appropriately
- deal expeditiously and appropriately with procedural objections
- keep interruptions to a minimum
- narrow issues (by clarification without unnecessarily interjecting)
- maintain order
- recognize the need for recess or adjournment
- ensure the hearing is conducted in accordance with Arbitration Act and Regulation, Family Law Act and Arbitration Agreement
- keep proceedings with the jurisdiction granted in the Arbitration Agreement
- keep the parties’ deliberations focused on the issues of the dispute ability to manage power imbalances and respond appropriately to on-going screening duty
g. Ability to handle witnesses
- know formalities for swearing or affirming witnesses
- explain procedure to witnesses where necessary
- in the case of expert witnesses, know how to qualify an expert witness
- demonstrate competence in conducting voir dires and the obligation to act as a gatekeeper with respect to proposed expert evidence
- encourage expert witnesses to use lay language
- consider whether the circumstances require that the arbitrator retain an expert witness to supplement the evidence given at the hearing by either of the parties
h. Demonstrate Respect for the Rights of Children
- canvass whether a Voice of the Child Report, Assessment or Counsel for a child is required
- know responsibility to report a child in need of protected know procedure for making such reports and subsequent steps in the arbitration
i. Ability to keep a record of evidence
- ensure proper record is kept of submissions and evidence
- subject the record to review and organization on a timely basis
- analyze the evidence record periodically during the hearing
- limit evidence to relevant topics
- ensure all exhibits are properly identified and recorded Store records in compliance with requirements of Ont. Reg. 134/07
