Co-Chairs
Judith Nicoll (jnicoll@mcinnisandnicoll.com)
Oren Weinberg (oweinberg@boulbyweinberg.com)
Family arbitration and mediation-arbitration is a growing area of practice across Ontario. Our large group of new and experienced family arbitrators meets from time to time to discuss our evolving standards of practice, recent case law, best practices, standard form agreements, and to share knowledge and fellowship.
We have established criteria for the FDRP Arb designation and will continue to work with trainers to help them develop useful courses, internship and mentorship opportunities for those seeking to become certified.
ARBITRATION
Family arbitration is a form of private, binding adjudication that resembles the court process in some ways and is very different in others. It is a good process choice for separating couples that can afford the cost of an arbitrator, prefer to choose their adjudicator and seek the confidentiality of private arbitration. The arbitrator is empowered by law and by contract to make binding decisions on issues dealing with custody, access, division of property and spousal and child support.
A critical defining feature of family arbitration is that the arbitrator has a duty to ensure that power imbalances, including those arising from domestic violence, have been identified and assessed, and can be effectively managed in a process of private adjudication. Under the law, family arbitrators are responsible for ensuring that the case they are agreeing to arbitrate is in fact appropriate for private adjudication. If there are features that would suggest another forum is better for the family— for example if the Office of the Children’s Lawyer should be involved, or a party might benefit from the free legal or domestic violence support available in the courts, or if the matter requires protection orders or other immediately enforceable orders, private arbitration would not likely be a good process choice.
FDRIO has developed Guidelines for Screening for Power Imbalances Including Domestic Violence for our member Arbitrators to follow as they reflect the best practices in the field.
An arbitrator is only authorized to determine issues over which they are granted jurisdiction in the parties’ Arbitration Agreement, All parties must receive independent legal advice before signing their Arbitration Agreement to have an enforceable Arbitration Award. Arbitration Awards may be appealed in accordance with the appeal rights set out in the Arbitration Agreement.
MEDIATION-ARBITRATION
As the name suggests, this is a hybrid process where one person is designated as a mediator-arbitrator. The mediator-arbitrator conducts a mediation as described above, failing which they decides that facilitation of discussion is no longer effective and a decision must be made. At that point, the parties begin a separate and distinct arbitration process. The goal of this part of the process is not to reach a settlement, but to ensure that each party has an opportunity to make their case to the arbitrator and respond to the other person’s case at a fair and impartial hearing. After the hearing is finished, the mediator-arbitrator will issue an award which is binding on both parties, much like a court order. Screening for power imbalances including family violence is important, to ensure that the case is appropriate for the process. In family mediation-arbitration, the professional is required to conduct their own screening, before the mediation-arbitration agreement is signed, as would any family mediator. See the FDRIO Screening Guidelines for more detail.
To join the FDRIO Arbitration section, members must:
- have completed the training requirements for family arbitrators prescribed by the Attorney General of Ontario on its website; students in training to become arbitrators are eligible for membership
- commit to comply with the continuing education requirements of their professional discipline; those prescribed by the Attorney General of Ontario on its website for family arbitrators; and those prescribed by the Family Arbitration Section
- commit to observe the Standards of Practice of FDRIO and of the Family Arbitration Section, including the Screening Guidelines
- have professional liability insurance for their arbitration services, with a minimum of $1,000,000 coverage per occurrence and $2,000,000 coverage in the aggregate; this requirement applies to practitioners and interns but not to students