Book Review: A Guide to Family Arbitration in Ontario, by Stephen Grant and Jenna Preston (Lexis Nexis 2018)
This thin (just over 100 pages of text), easy-to-read primer is a gem for family arbitrators and parenting coordinators. It is also a great guide for counsel wondering if private adjudication is a good option.
One may not wholly accept the premise that family arbitration is becoming the norm in Ontario due to an unwieldy court system—— you can get a trial or long motion date in Toronto in 4-6 weeks— nor with the assertion that family arbitration is less costly than court.
But if you want to quickly and solidly learn the basics of family arbitration and the case law on how family arbitration should and should not be done— this is the book for you.
Organized practically, the book starts with the source of an arbitrator’s jurisdiction under the Arbitration Act and Regulation 134/07, noting that arbitrators have the responsibility to determine their own jurisdiction and highlighting some of the things that fall outside any arbitrator’s jurisdiction. It is critical that clients, counsel and arbitrators fully agree on jurisdiction if they want a successful process, and this book makes that clear.
Grant and Preston take the time in the first chapter to cover key principles and cases. The section dealing with an arbitrator’s jurisdiction in child-related matters sets the table for what might be the theme of this book: that the arbitrator’s duty to screen for suitability in family arbitration is its most distinctive feature. Private adjudicators impact the lives of vulnerable children, and if there is a risk that the facts call out for remedies that an arbitrator cannot offer— such as appointing the Office of the Children’s Lawyer, relying on parens patriae jurisdiction, moving the matter forward for free as a judge would do, or the need to find someone in contempt as a means of enforcing compliance — the arbitrator should screen the case out of private adjudication.
The structure of the remainder of the book is equally practical, with chapters that are organized around the most meaningful subjects for those doing this work: understanding mediation and arbitration, evidence and procedure, reasonable apprehension of bias, screening for power imbalances and domestic violence, costs, and the ways our awards can be challenged under the Arbitration Act.
Most useful is the manner in which case law is presented to bring home key messages. Many of the most informing cases on the challenges of family arbitration and parenting coordination touch multiple themes. Grant and Preston carefully parse their lessons and often refer to different parts of the same case in several chapters. From the well-known to the more obscure, the case law that teaches us what not to do is well-documented in this well-researched little book.
Handling evidence and managing the process in family arbitration is often the most intimidating part of the role for new arbitrators. By merging these two topics, while differentiating between arbitration and parenting coordination and highlighting the most on-point cases, Grant and Preston deliver great value.
While not getting it entirely right, the chapter on Screening for Power Imbalances and Domestic Violence is the best discussion of this complex topic in any mainstream arbitration text, highlighting that this is the most unique and perhaps most challenging aspect of family arbitration practice.
Family arbitrators are the only family law professionals with a statutory duty to screen cases for suitability. There are good reasons for this. Private adjudication denies clients access to the features of a publicly accessible, accountable and free process of adjudication, one that includes full appeal rights and access to free duty and advice counsel, family court support (domestic violence) workers, Information and Referral Coordinators, free on-site mediation, contempt and parens patriae jurisdiction, the ability to order free representation for children and brief Voice of the Child Reports, quickly enforceable protection and other orders, and court security.
Professionals who oversee a process that denies clients these services and remedies, and who profit from doing so, should have a duty of care to assess whether the families whose cases they are proposing to arbitrate might be better served in another process. Family arbitrators are required to be trained to screen cases for suitability, to recognize the predictors of risk or unmanageable power imbalance and to implement safety planning and safe termination protocols. In family law, this duty explicitly supersedes the arbitrator’s duty of impartiality.
Grant and Preston discuss all of this, referencing some of the lesser-known cases that demonstrate the harm that incomplete or ineffective screening can cause clients and children. (Full disclosure— they also respectfully and fairly reference the writer’s views on this subject.) They correctly note, for example, that mediator-arbitrators are required by the Regulation under the Arbitration Act (and also by best practices for mediators ) to conduct the screening themselves. It is unacceptable for mediator-arbitrators and parenting coordinators to rely on anyone else to screen their clients.
However, they fall a wee bit short of endorsing the correct practice for screening in arbitrations that are not preceded by mediation or where the mediator and the arbitrator are different people. In those cases, the arbitrator must send both clients to a third party screener, receive a (possibly detailed) confidential report on the screening from that person and to consider the results of that report before taking the case and at all times during the arbitration.
The FDRIO Screening Guidelines are clear: it is never acceptable for a family arbitrator to rely on the parties’ lawyers for screening. Nor is it acceptable for each client to be screened by a different person. The Regulation says as much as well. Many reported and anecdotal harms have been caused to clients and their families by arbitrators improperly relying on counsel to screen their own clients. To their very great credit, Grant and Preston highlight all of this fully.
The book includes some useful precedents though it is important to note that each family arbitrator will have their own version of agreement which must be carefully reviewed by clients and counsel.
As useful as it can be, family arbitration is a high cost, high risk process for those who are not good candidates. This book is an excellent review of those risks and well educates the next generation of family arbitrators.
Hilary Linton is a Toronto family lawyer, mediator, arbitrator and teacher. She is a director of the Family Dispute Resolution Institute of Ontario.