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Family Law Arbitration

Under the provisions of the Family Law Act (Section 8(2)) lawyers have an obligation to advise parties who consult with them about various dispute resolution options. One option for consideration is arbitration.

What is Arbitration?

Arbitration is identified in the Family Law Act (Section 1) as “family dispute resolution”: a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside of court.

Family law arbitration is governed by the Arbitration Act. Section 2.1 of the Arbitration Act sets out specific requirements for an arbitration agreement in family law disputes.

Arbitration is a private dispute resolution mechanism where parties, who have been unable to reach a resolution to an issue, agree to appoint an independent and neutral party (an arbitrator) to make a decision that is binding on both parties.

From my perspective, privacy and control over the process are some of the significant benefits of arbitration. Parties generally do not have control of who sits in the courtroom watching the proceedings and hearing the evidence (for example a neighbour could be in the courtroom on an unrelated matter and hear your case as they wait for their case to be called). By contrast, in arbitration the parties decide who is to be present (and generally it is limited to the parties, their lawyers and the arbitrator). Additionally, parties and their lawyers can set the schedule of an arbitration to a far greater extent than they are able to in a court proceeding (in a court proceeding the trial list or docket list may be full and despite being prepared to proceed a hearing will be moved to another date on short notice).

As described on clicklaw.com:

“Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See “circumstantial evidence,” “hearsay,” and “testimony.” and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.”

What is Mediation/Arbitration (“Med/Arb”)?

Med/Arb is a dispute resolution mechanism that is a variation of arbitration. The mutually agreed upon independent and neutral arbitrator starts out as a mediator but in the event the parties cannot reach a decision through mediation the mediator becomes an arbitrator and makes a decision that is binding on the parties.

Further described on clicklaw.com:

“In a med/arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can’t be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It’s really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.”

Who can act as an arbitrator?:

The qualifications for family law arbitrators are set out in the Family Law Act Regulation (Section 5).

Where can I find an arbitrator?:

Resources for arbitration: