Family Arbitration: Creative Solutions for Legal Problems

 Arbitration

The term “negotiation” usually refers to the give and take conversation between disputing parties without the assistance of a third party.  “Mediation” is a negotiation that is assisted by a neutral third party facilitator with no decision-making power.  In mediation, the final decision on outcomes remains in the hands of the parties.  “Arbitration” uses a third-party neutral who decides the outcome of a dispute between two or more parties based on evidence provided by the parties.  Usually the decision is binding on all parties.

The arbitration process can involve witnesses, often testifying under oath, as well as documented evidence.  There are rules of evidence, though they tend to be more relaxed than in court.  Often a transcript of the arbitration hearing is made and at their discretion, the parties may submit post-hearing briefs or make oral closing statements.  The arbitrator then studies the various testimonies and evidence and renders his decision in the form of an Award.  That document typically includes a statement of the issues before the arbitrator, an analysis of the evidence and arguments presented by the parties, with the arbitrator’s decision based on the evidence.  The decision may be incorporated into a Court Order.

Med-Arb

The Med-Arb process uses mediation to resolve disputes, followed by arbitration if mediation is not successful.  Even when mediation fails to result in a settlement, this process has merit since mediation helps clarify the issues and each side’s perspectives prior to arbitration.  This hybrid or integrated dispute resolution process which can be conducted by one specially trained dispute resolution practitioner [i.e. mediation experience with professional status as an arbitrator under Ontario’s Family Statute Law Amendment Act, 2006].  The two part concept is designed to enhance creative and self-determined outcomes with the mediator as a neutral facilitator at the first instance.  Unable to accommodate a comprehensive agreement, the dispute resolution process turns to arbitration with the third-party as the final decision maker.  This second phase is designed to ensure a comprehensive resolution of all present issues. 

Usual Procedure

The common procedure in family law arbitration is to use a single arbitrator.  The arbitrator is expected to take control of the proceedings and run the hearing, similar to a judge presiding over a court room.  The arbitrator should ensure a fair, efficient and expeditious hearing.  At MBG Chambers, Nigel Macleod would not solely make decisions on matters of substance, but procedural issues as well [e.g. adjournments, production and disclosures, or exclusion of witnesses.]  Please note that statutory requirements of domestic violence screening and independent legal advice would have preceded the commencement of the arbitration hearing.

The arbitrator will indicate which documents have already been received and what he understands to be the essence of the dispute.  These preliminary steps should be taken to clarify and narrow the matters to be decided by the arbitrator.  It is important that all parties understand the dispute because an arbitrator can decide only that issue which is submitted by the parties.  It may also be possible at this stage to obtain some agreement on facts or evidence, reducing the number of truly contested matters and thus reducing the length and expense of the hearing.

Adopting a clear understanding of the arbitration procedure is vital to the success of the process.  This includes such matters as whether or not written pleadings will be exchanged, the order in which people will speak, who may be present and the expenses of witnesses. Sometimes a separate written agreement will be entered into concerning procedure.  The arbitrator should explain the process and answer any questions.  The arbitration then proceeds to the respective party’s evidence with cross-examination, reply evidence and final arguments or submissions.

Boardroom Procedure 

As an alternate to the usual procedure there is the “boardroom procedure”.  Boardroom arbitrations have been likened to job site meetings in the construction industry and have an informality which some parties prefer.

As the name suggests, this type of arbitration is conducted like a boardroom meeting with the arbitrator seated at the head of the table and the participants seated around it.  Matters in dispute are dealt with individually as if they were items on an agenda.  This differs from the usual procedure where the applicant presents an entire case before the respondent presents an opposing case.  In boardroom arbitrations witnesses may be identified at the start of the hearing and sworn once before the main hearing proceeds.

Boardroom procedure would permit the arbitrator to hear all evidence related to any one issue at the same time.  This ensures immediacy and an informal but concentrated approach to the critical assessment of relevant information.