If you are looking to limit the time, expense, and stress associated with your divorce, separation, or other family law matter, arbitration may be an option to consider. With arbitration, you and the other party must both agree to pursue this alternative to court. You must sign an agreement that waives your right to court, and the arbitrator’s decision will be legally binding. Because this can be a complex process, we have included additional information below.
The Arbitration Process in Ontario
Once you and your spouse decide to separate and/or divorce, you should take the following steps:
- Retain a lawyer.
- Discuss with your lawyer the different methods of alternative dispute resolution that could be employed.
- Next, both you and your spouse must agree to engage in arbitration.
- Once you have agreed on arbitration as the form of dispute resolution, you and your spouse or your lawyers must discuss and determine which issues will need to be arbitrated.
- When the issues have been identified, you and your spouse must locate and select an arbitrator to which you are both agreeable.
- Once you have agreed upon an arbitrator, either side should draft an arbitration agreement stipulating:
- That you waive your right to go to court and litigate; and
- The conditions surrounding the arbitration, such as:
- Who will arbitrate;
- Where and when the arbitration will be conducted; and
- What issues will be arbitrated.
- Next, both you and your spouse should be interviewed separately by an individual specially trained to recognize whether or not domestic violence is present or power imbalances exist between you.
- Both parties will need to execute an arbitration agreement. Both parties must have independent legal advice in order to enter into an arbitration agreement.
- If both you and your spouse pass the screening and it is ascertained that neither domestic violence nor power imbalances, which would prevent a person’s attendance at Arbitration, are present, you may sign the arbitration agreement thus enabling you to begin the arbitration process. After this is completed and prior to engaging in the first session of arbitration, ensure that both you and your spouse have fully disclosed all relevant documents, i.e. financial information, to secure the best possible settlement.
- What will follow is a series of meetings during which both parties will be able to make arguments in their favour as well as present supporting evidence in the form of either documents or witnesses. These meetings will be attended by both spouses, the arbitrator and, if necessary, both lawyers. Depending on the complexity and number of issues stipulated in the arbitration agreement, one meeting may not be enough for full settlement. Unlike mediation, arbitration follows a stricter process where the parties make opening and closing statements, present evidence to support their claims, and examine and/or cross-examine witnesses, which may or may not take up a lot of time and consequently contribute to the length of the process. This may take more than one meeting, as it is impossible to say how many meetings may be needed to resolve the case.
- Once both sides have presented their arguments and evidence supporting same, the arbitrator will consider everything and make final and binding decisions.
- All decisions will be recorded in an arbitral award, which is legally binding and also enforceable by the courts.
Advantages & Disadvantages of Arbitration in Family Law
There are advantages and disadvantages associated with a decision to engage in arbitration as the method of dispute resolution for your case.
Arbitration may offer the following advantages:
- This process most closely resembles an actual trial, however, you will not be faced with the unprecedented delays characteristic of court. Nor will you be required to abide by all the procedural formalities.
- Arbitration is considered to be more efficient and less expensive than court and you and your spouse are given the ability to select the arbitrator for your case.
- The arbitration is flexible in that the sessions are scheduled according to your and your spouse’s availability.
- A final advantage of arbitration is that it offers spouses who may not be able to cooperate with one another, or engage in meaningful discussions during mediation with a viable and confidential alternative to court, as opposed to forcing them into litigation and consequently increased costs and delays.
Arbitration may have the following disadvantages:
- Parties seeking to avoid court are still faced with an alternative that deprives them of the ability to make decisions pertaining to themselves and their children.
- Due to the adversarial nature of said process it may still create feelings of animosity or hostility between the spouses, thus making post-divorce/separation relations difficult.
Med-Arb or Mediation-Arbitration is a process where Mediation will be first used to resolve the conflict between the spouses. If the Mediation process failed to reach an agreement, then the process will shift into Arbitration where the Arbitrator's decision will be legally binding on both spouses.