Understanding Family Law Arbitration
There are several options for resolving family law disputes. While many find mediation and collaborative divorce effective, others are unable to negotiate an agreement and instead require a third-party decision maker.
Arbitration is an efficient and private option. It offers a structured and effective alternative to family court, providing a viable pathway for resolving family law disputes. Unlike mediation, arbitration involves a neutral third-party decision maker (the arbitrator) who makes a legally binding decision, known as an arbitration award. This award carries the same weight as a court order, requiring both parties to adhere to its terms.
Arbitration is voluntary and can only proceed when both parties consent to this method of resolution. Before arbitration can begin, both parties must sign an arbitration agreement, which outlines the terms of the process and formally commits them to the arbitrator’s decision. This ensures that everyone understands and agrees to the process before moving forward.
Arbitrators are governed by the Arbitration Act in their provincial or territorial jurisdiction, which codifies their authority and provides a framework for the arbitration process. The Act sets out the arbitrator’s powers, the conduct of the arbitration, and the rights and responsibilities of the parties involved, thereby establishing a structured and reliable method for resolving disputes. It also includes specific rules and procedures arbitrators must follow, ensuring that the process is fair, consistent, and legally binding.
Advantages of Family Law Arbitration
- Cost: Arbitration is often a more cost-effective solution when compared to court. Several factors contribute to this, such as:
Choice of Arbitrator: The parties involved participate in selecting the arbitrator, whose hourly rate typically ranges from $250 to $1,000, depending on their experience and expertise.
Shared Fees: Commonly, both parties share the arbitrator's fees, with some flexibility should access to funds be restricted due to the family law dispute.
Flexible Process: Arbitrators offer some flexibility in how the arbitration process proceeds. For instance, if parties need a swift resolution, they can work with the arbitrator to streamline the process. This might involve limiting oral evidence during the hearing and submitting comprehensive written submissions instead.
Attendance Options: The arbitrator may allow parties to attend hearings either in-person or remotely, based on what is most convenient for them.
According to the 2021 Legal Fees Survey by Canadian Lawyer magazine, the national average cost for a 5-day family law trial is approximately $43,500.[1]
- Time: Arbitration is usually much faster than court. As a private service, arbitration is limited only by the schedules of the parties and the arbitrator. Most arbitrators can arrange a hearing within a few weeks of being hired. Arbitration also involves fewer formalities, providing a more direct and streamlined path to a final determination. In contrast, it is not uncommon to wait up to six months or more for an initial court appearance due to backlogs and pre-court requirements that must be navigated before reaching the courtroom.
In Alberta, it can take 2 to 3 years for a trial longer than five days to be scheduled from the date the parties certify readiness.[2]
- Flexibility: Parties have more control over the arbitration process. They participate in choosing the arbitrator and can influence how the process proceeds to ensure their specific needs are met. They can also decide to proceed with or without counsel present. This flexibility allows for a more customized approach to resolving disputes.
- Confidentiality: Arbitration proceedings are private and confidential, encouraging open and honest communication. In contrast, court proceedings are open to the public, and written decisions are published and publicly available.
Encouraging Emotional Well-being and Cooperative Resolutions
Family law conflicts can be damaging, significantly impacting family dynamics and the well-being of its members. While some matters require intervention, family law professionals often seek ways to minimize conflict and focus on sustainable, future-focused resolutions. They understand the importance of enabling families to move on and, in some cases, co-parent effectively as they transition into the next phase of their lives. Although arbitration is more adversarial when compared to other alternative dispute resolution options, it offers many advantages that help parties move forward and maintain healthier relationships post-separation:
- Emotional Considerations: Arbitration, being less formal and adversarial than court trials, can be less emotionally draining. The arbitrator has more flexibility over the process to protect the parties as they navigate through it. This can include shorter hearing sessions spread over several days, frequent breaks, placing parties in separate rooms, or relying on written submissions to limit interactions. These measures can help shelter the parties from the emotional aspects of the dispute, allowing them to focus on resolution rather than engaging in confrontational legal battles.
- Voluntary Nature: Arbitration is a private and voluntary process. Both parties must agree to arbitration and select an arbitrator together. This agreement signifies a mutual commitment to resolving the dispute outside of court.
The Arbitration Process
Once the decision has been made to proceed with arbitration and an arbitrator has been agreed upon, the process follows similar steps with some flexibility based on how the parties wish to proceed:
- Pre-Arbitration Call: The process usually begins with a pre-arbitration conference call where the parties and arbitrator discuss the legal issues to be decided, the process to follow, and any other relevant factors such as the exchange of documents and format of the hearing (in-person, video conference, etc.).
- Arbitration Agreement: Following the pre-arbitration call, the arbitrator provides an arbitration agreement outlining the terms of the retainer, billing details, and the specific legal issues to be addressed. Once signed, the parties are bound to proceed with arbitration.
- Arbitration Hearing: The hearing itself is less formal, though some formalities and structural aspects mirror those of court. It typically takes place in a boardroom setting with the arbitrator, parties, and, if agreed upon, their respective counsel. While there may be slight variations in how the hearing proceeds, it is common for the parties to submit written affidavits and evidence for the arbitrator to review ahead of time. During the hearing, the arbitrator may provide parties with time for oral evidence, which is usually given under oath by a witness or party involved in the matter. The arbitrator may also ask clarifying questions to ensure they understand each party's evidence and position. The length of the arbitration hearing can vary from a few hours to multiple days, depending on the extent and complexity of the legal issues involved.
- Arbitration Award: After the hearing, the arbitrator prepares a formal written decision, known as the arbitration award. The applicable Arbitration Act includes certain requirements the arbitrator must follow in preparing and serving the award. Commonly, the Act requires that the award is in writing, includes the date and location, is signed by the arbitrator, and served on all parties. Once the decision is rendered, the parties can seek clarifications if any aspect of the award is vague or ambiguous. However, the parties are legally bound by the award, which carries the same weight as a court order and is enforceable.
Preparing for Arbitration
If you are considering arbitration for your family law dispute, here are a few tips to help you prepare:
- Take Time in Selecting Your Arbitrator: Not all arbitrators are the same; there is no one-size-fits-all approach. Each arbitrator has their own style and experience. Take time to review their website profile or bio and take advantage of any free consult to learn more about their experience, areas of expertise, and approach. For example, if you are dealing with significant business and financial assets, it would be prudent to seek out an arbitrator with family law experience in navigating complex asset division. Ultimately, the arbitrator you choose will make a final binding decision on your family law issues, so it is important to ensure they are a good fit.
- Gather Relevant Documents: Often, during the pre-arbitration call, the arbitrator will provide direction on documents that should be exchanged and set deadlines for serving evidence. Do your best to get organized ahead of time. Collect all pertinent documents such as court orders, agreements, appraisals, and financial disclosures.
- Consider Legal Assistance: You may want to hire a lawyer to provide legal advice and representation during arbitration. Given the binding nature of the arbitration process, a lawyer can help ensure your position is presented in the best possible way to achieve your desired outcome. Family law is emotional, having an objective legal professional on your side can make a world of difference.
- Define Your Goals: Clearly outline your main concerns and what you hope to achieve through arbitration. If you are represented by counsel, meet with them in advance of any pre-arbitration call or hearing to ensure they have a clear understanding of your position so they can effectively advocate for your interests.
- Take Care of Yourself: Ensure you are physically and emotionally prepared for the process. We've all heard the adage "it takes a village" - separation and divorce is no different. Consider hiring a psychologist or counselor to provide emotional support throughout the process, seek support from friends and family if needed, and be gentle with yourself as you navigate the process. Building a support network, taking breaks, and finding time to decompress is important and will help your resilience.
Our Approach to Arbitration
Our experienced arbitrators are senior family lawyers who have supported families through a broad spectrum of family conflicts, including parenting, property division, child or spousal support, and complex high net-worth cases involving significant assets and corporate structures. Our primary goal is to create a safe and open environment where parties feel empowered to negotiate durable, long-term solutions for themselves and their families.
Contact us for a FREE initial consultation with our intake coordinator today!
References
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