What is arbitration?
Arbitration is a voluntary family dispute resolution process in which a neutral third party intervenes to provide a final and binding decision on the issues in dispute between spouses or partners. It is governed by a statute, the Arbitration Act, 1991. While it is a private process and the parties may intend that it be confidential, the decision of the arbitrator, the Award, is subject to appeal and judicial review, and it may be filed with the court for enforcement. While the arbitrator may be a lawyer, he or she is not the lawyer for either of the parties, but rather an adjudicator who is precluded from providing legal information or advice. The arbitrator is also not a mediator and he or she will not conduct any part of the arbitration as a mediation. The objective in arbitration, as in adjudication, is for the arbitrator to make a final and binding decision for the parties, which is enforceable in court, on all of the issues that may have arisen as a result of their separation. Those issues may include custody of or access to children, child and spousal support, and the division of property. The parties present evidence in support of their positions and the arbitrator applies the law in the disposition of the issues in dispute submitted to arbitration.
How does arbitration work?
I begin my arbitration process with an initial meeting with the parties. I inform them of their process options and answers their questions to assist them in making an informed choice. An alternative to arbitration is mediation-arbitration or med-arb, in which the process begins as a mediation and, if the parties are unable to negotiate a mutually acceptable agreement on one or more issues, it proceeds as an arbitration on those matters with the same neutral serving as both the mediator and the arbitrator. After my initial meeting with prospective participants together, I refer them to another qualified neutral professional who meets with each of them separately. The purpose of these meetings is to screen the parties as to the appropriateness of arbitration for them. In a mediation-arbitration, I screen the parties. The communications made in these separate meetings are private and confidential and the neutral who screens will not reveal to their spouses or partners what was said.
Following the decision of the parties to proceed with arbitration and the determination of the neutral who conducted the screening that the arbitration can proceed, I prepare either a Family Arbitration Agreement or Family Mediation-Arbitration Agreement, which I send by e-mail to the parties for their review and consideration. Before they can sign the applicable agreement, it is necessary for them to obtain independent legal advice. Their lawyers sign Certificates of Independent Legal Advice and I as the arbitrator sign a Certificate of Arbitrator confirming compliance with my obligations, which certificates are attached to the agreement. At such time as the agreement is signed, neither party may unilaterally terminate the arbitration.
Before I set a date for the arbitration hearing, I convene a pre-arbitration conference with the parties and their lawyers. In that conference, the participants make final decisions on the issues submitted to arbitration, the date, time, and place for the arbitration, the statements and documents to be produced and the timelines for their delivery, the nature of the evidence to be presented, the witnesses and summaries of what it is expected they will say, experts and their reports, the reporter if the evidence is to be transcribed, the applicable law, and the scope of appeal.
The arbitration may proceed as a hearing or on the basis of documents alone. Throughout the arbitration hearing, I treat the parties equally and fairly. The legislation authorizes me to decide upon procedure although I may choose to confer with the parties and their lawyers on process matters. While the hearing will likely be less formal than a trial, it will still proceed in a prescribed order. A designated party begins by calling his or her witnesses who will give their evidence under oath or affirmation with the other then allowed to challenge what those persons said. Any documents presented in support are marked as exhibits. On the conclusion of the presentation of the evidence by that party, the other then has the opportunity to call witnesses and produce documents. At such time as all of the evidence has been received, I adjourn the hearing to make my decision.
What can I expect from arbitration?
The arbitrator makes his or her decision on all of the issues submitted to arbitration as set out in the Family Arbitration Agreement or Family Mediation-Arbitration Agreement. He or she applies the law in force in Ontario to the facts found by him or her on the evidence. The decision of the arbitrator is called an Award. A party may appeal the Award to the court or apply to the court to have the Award set aside. The Award may be made an Order of the court for enforcement purposes. At any time before the arbitrator delivers his or her Award, the parties together may decide to terminate or suspend the arbitration by written agreement signed by them.
What should I look for in an arbitrator?
Most arbitrators have websites on which they list their qualifications. If you visit a website and the academic and professional background of the arbitrator is not listed, you should ask for a copy of his or her curriculum vitae or résumé. Of importance in assessing the appropriateness of any arbitrator is his or her active involvement in one or more of the ADR and arbitration organizations, including the ADR Institute of Canada/Ontario and the Family Dispute Resolution Institute of Ontario. Both organizations offer the opportunity to obtain a professional designation, which arbitrators list among their qualifications.
What else can I read to learn more about arbitration?
Casey, J. B., & Mills, J. (2005). Arbitration Law of Canada: Practice and Procedure. New York: Juris.
Landau, B., Wolfson, L., & Landau, N. (2009). Family Mediation, Arbitration and Collaborative Practice Handbook (5th ed.). Toronto, ON: LexisNexis.
Wilton, A. C., & Joseph, G. S. (2012). Family Law Arbitration in Canada. Toronto, ON: Carswell.
Shields, R. W. (2018). Family Mediation and Family Arbitration for the Self-Represented. Toronto, ON: Thompson Reuters.
Where can I find out more about arbitration?
ADR Institute of Canada
ADR Institute of Ontario
American Arbitration Association
Association of Family and Conciliation Courts
Association of Family and Conciliation Courts – Ontario Chapter
Family Dispute Resolution Institute of Ontario
Ministry of the Attorney General of Ontario