How Do I Start Arbitration with My Spouse?

From Clicklaw Wikibooks

Pick the right moment

You can't force your ex to go to arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and is binding on the parties. See "alternative dispute resolution" and "family law arbitrator." with you, you can only do it with their agreement. Your ex isn't likely to agree to arbitration if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting arbitration can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, but we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Simeng what happened with her and Robert, and she said that they resolved everything through arbitration."

At this point, it's all about getting your ex to try arbitration, and it's your job to sell the idea. Here are some reasons why arbitration is a really, really good idea:

  • arbitration is private, there is no court file and the hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." is not open to the public,
  • you can arbitrate with the help of lawyers or on your own,
  • you can pick an arbitrator who's an expert in the issues that are the most challenging for your family,
  • you can get the help of professionals like child psychologists, business valuators, and tax planners,
  • with input of the arbitrator, you can design the rules that will apply to your hearing,
  • with input of the arbitrator, you can decide on the amount of disclosureA step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. that will be needed for your hearing,
  • the arbitrator's decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." is just as final and just as bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." as a court awardA mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration" and "family law arbitrator.",
  • you can schedule the hearing date as soon as you want, where you want, and
  • with faster hearings and a more efficient process to get there, arbitration is cheaper than litigation.

Going to trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." will cost a minimum of $15,000 in lawyer's feesThe money charged by a lawyer to their client for the lawyer's services, usually pursuant to the terms of the lawyer's retainer agreement. Most family law lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include "disbursements," costs incurred by the lawyer for such things as courier fees, court fees or photocopying expenses. See "account" and "certificate of fees." for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to try arbitration, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

Hire an arbitrator

Now that your ex has agreed to try arbitration, strike while the iron is hot: find an arbitrator and book a pre-arbitration meeting immediately.

Before hiring an arbitrator, make sure you've looked into their background to find out if they have special training in arbitration.

Lawyers who have training and are accredited to arbitrate by the Law Society are called family law arbitrators, and they will usually advertise themselves as such.

When picking an arbitrator, go to the website of a professional association like the Family Law Arbitrators Group. Associations like this will have a list of their members, the training and experience they require for membership and a short biography of each member.

If that doesn't work, call a family law lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.". Most family law lawyers will know one or two arbitrators they can recommend, and will be happy to give you the arbitrators' names and phone numbers.

For more information

You can find more information about arbitration in the chapter Resolving Family Law Problems out of Court.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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