What is arbitration?

 In Family Law

Arbitration is an alternative dispute resolution process available to separated couples.   The parties choose an arbitrator, who then acts like a judge to make decisions for the parties.  The parties agree in advance what types of decisions the arbitrator can make, and what the arbitration format will look like.

In most cases, the arbitration process has a relatively formal format, similar to court.  The parties, usually with the assistance of lawyers, make opening statements, call witnesses and present evidence, and give closing statements.  However, the process can also be less formal, depending on the issues and the parties’ preferences.  Sometimes evidence can be given in writing, to speed up the process.   After hearing the evidence and submissions, the arbitrator writes a decision, called an “Arbitration Award.”  The Arbitration Award can be converted into an enforceable court order.

Family law arbitrators are usually experienced family law counsel.  Arbitrators must undergo significant training to obtain their qualifications.

Parties choose arbitration for a variety of reasons.   They can select the arbitrator, for example.  They can select their own hearing dates.   And they can forgo multiple court dates and (usually) move forward much more quickly with arbitration than with court, if all disclosure is exchanged.   And although the arbitration award can be registered at court afterwards, the actual arbitration itself is not public and is hosted in a private location, often at the firm of the arbitrator.

However, arbitration can only proceed if both parties consent and enter into a written agreement to arbitrate.  The parties will also need to attend pre-arbitration screening for domestic violence.   In addition, the parties will have to pay for the arbitrator.

Sometimes, parties agree to mediation arbitration, or med-arb.  That means that the parties agree that if mediation is unsuccessful, the mediator will then become an arbitrator.   Med-arb adds pressure to the mediation, to encourage parties to settle, while providing the parties with confidence that they will have a binding decision available quickly if they cannot reach agreement.

Sometimes, parties who have separated reach an agreement, and then decide that if anything in the agreement is disputed, or if they need to review the agreement, they will arbitrate.  This precludes them from returning to court on those issues and is referred to as secondary arbitration.

Mann Lawyers has two full qualified and experienced family law arbitrators, Jane Murray and Greg Ste. Marie.   If you feel that mediation-arbitration or arbitration are a route that might work for you and your spouse, please contact Jane Murray or Greg Ste. Marie for more information.

This blog post was written by Mary Cybulski a member of the Family Law team.  She can be reached at 613-566-2073 or at mary.cybulski@mannlawyers.com.

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