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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
Arbitration is a method of alternative dispute resolution that most closely resembles an actual trial but which provides parties with a quicker, cheaper and more informal process. 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. Before any arbitration proceeding, the arbitrator has the responsibility to ensure that effective screening for power imbalances including family violence has been conducted to ensure that the process is truly consensual and voluntary and to assess whether unmanageable power imbalances exist that may preclude a fair process. The parties are required to sign an Arbitration Agreement in which the parties waive their right to go to court and litigate, assign an arbitrator and outline the issues they would like to be arbitrated. An arbitrator is only authorized to determine issues over which she or he is granted jurisdiction in the parties’ Arbitration Agreement, All parties must receive independent legal advice to have an enforceable Arbitration Agreement. 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 he or she decides that facilitation of discussion is no longer effective and a decision must be made. In the event that the mediation does not result in an agreement, the parties then 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 his or her 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. As with mediation and arbitration, screening for power imbalances and family violence is important, to ensure that the case is appropriate for the process.