How to Resolve A Family Law Case? Mediation or Mediation/Arbitration?
By Amanda Marsden, Partner, Senior Family & Estate Planning Lawyer, Calgary
One of the main goals of meeting with a family lawyer is to figure out how you can “be done” with the divorce process and reach a settlement. One of the most often used tools to reach a settlement are mediation or mediation-arbitration. These processes fall under what family lawyers consider Alternative Dispute Resolution. This means you don’t want to engage in litigation in court and are looking for another way to resolve your issues arising from separation. Mediation and mediation/arbitration require the consent of both parties in order to proceed. You cannot force either of these processes if your ex-partner prefers the litigation route to settle your family law claims.
Family law mediation is a process where the parties hire a neutral third party (usually a senior family lawyer) to help manage their in-person negotiation. The parties can attend alone, or bring their respective family lawyers with them. This process does not require that the parties reach an agreement, and if some issues are left unresolved, the parties can leave the process without any penalty. The discussions which are engaged in at a mediation are on a without prejudice basis, meaning that they cannot be used in court after the mediation is over.
Family law mediation is often a relatively cost-effective way of reaching a settlement on all issues and can be successful even when the parties appear to be at odds. However, one of the most important steps in the mediation process is picking the right mediator. The Calgary family lawyers at Crossroads law have excellent working relationships with a number of Calgary mediators and can suggest a mediator who would be a good fit for your situation.
Mediation/arbitration starts out similar to the mediation process, except that the parties agree at the outset that if mediation is unsuccessful, the process will turn into an arbitration. In most cases, the mediator who was chosen by the parties then becomes entitled to act as an arbitrator and they can make a decision. There will be a clear difference between the two processes, and all parties will know when the mediation stage is over and when arbitration has begun.
Arbitration is a more formal process which is governed by the Arbitration Act, RSA 2000, c. A-43. Once arbitration commences the arbitrator controls the process in the family law claim and their decisions are binding. The arbitration itself can be formal, similar to a trial, with oral evidence, cross examination and expert witnesses. In some cases, the arbitrator will use a less formal process and make their decision on the basis of written submissions from each family lawyer.
Arbitrators are not just used to give a final decision on the whole family law or divorce case. They can also deal with interim issues such as production of documents, child support, spousal support or occupancy of a matrimonial home. However, once an arbitration decision is made, that decision is difficult to appeal, and there are cases from the Alberta Court of Appeal that say that arbitration awards are only appealed in the most compelling circumstances, see Alanen v. Elliot 2019 ABCA 290,
[30] Kawchuk held that it is the policy of courts to encourage dispute settlement: para 38. This policy militates against setting aside an arbitration award except in the most compelling of cases. In light of the history of this arbitration, granting permission to appeal will not encourage dispute resolution…
Also remember that if the parties agree to use arbitration to settle their family law or divorce case, neither party can unilaterally back out of the process. They are stuck in it until the arbitrator resigns, is removed by a court order, or both parties agree.
If you are considering attending a mediation or mediation/arbitration to resolve your family law issues arising out of your separation or divorce, the Calgary family lawyers at Crossroads Law are here to help. We have extensive experience in assisting clients in both arbitration and mediation and can advise which process may fit your specific circumstances. Crossroads Law also has in-house family law mediators who can help to resolve your disputes after a separation or divorce.
