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Difference between revisions of "Family Law Arbitration"

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Family Law Arbitration (view source)

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


NOT FINISHED. MUST BE EDITED. MUST BE REVISED TO REFLECT AMENDED CAA. In arbitration, the parties hire a neutral third party, an arbitrator, to decide how a dispute should be resolved. While the job of a mediator is to help two people work towards a solution that they make for themselves, the arbitrator's job is to act like a judge and impose a resolution, after hearing evidence and listening to the arguments of each party.
In arbitration, the parties hire a neutral third party, a family law arbitrator, to decide how their dispute should be resolved. While the job of a mediator is to help two people work towards a solution that they make for themselves, the arbitrator's job is to act like a judge and impose a resolution, after hearing evidence and listening to the arguments of each party.


This chapter provides an introduction to arbitration, discusses when to use arbitration in a family law dispute, and gives some suggestions about how to find a family law arbitrator. A list of family law arbitrators practicing in the Lower Mainland and Victoria is provided.
This page provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. This page also provides some suggestions about how to find a family law arbitrator.
 
JP not done. No glossary tags to be added. Internal and external links to be added.


==Introduction==
==Introduction==


Arbitration is rarely used in family law matters in British Columbia, probably because most lawyers aren't used to it and probably because many lawyers figure that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration is most often used in a labour law context.
Arbitration has rarely used been in family law matters in British Columbia, probably because most lawyers weren't used to it and probably because many lawyers figured that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration was most often used in a labour law context. The new ''Family Law Act'', however, makes a number of changes to the provincial law that emphasize and highlight the importance of arbitration in family law disputes.


Arbitration has a number of advantages for family law problems:
Arbitration has a number of advantages for family law problems:


* it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on
#it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who has a special expertise in, for example, children, tax problems or property issue;
* it allows the couple to pick the particular rules that will apply to the arbitration process and the arbitrator's decision, providing that the rules aren't too different from the usual rules of family law and providing that the result of the arbitration process would be considered reasonable under the usual rules of family law
#it allows the couple to pick the particular rules that will apply to the arbitration process and the arbitrator's decision, providing that the rules aren't too different from the usual rules of family law;
* the arbitration process is private and shielded from public scrutiny
#the arbitration process is private and shielded from public scrutiny; and,
#the result of of the process is an award that is just as binding as a court order and can be enforced just like a court order.
 
As well it is often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can be booked within six or eight months, it can take a year or longer to get a date for longer trials because the court is so busy. An arbitration can be booked as soon as everyone has the free time in their calendars.


===The Process===
===The Arbitration Process===


When a couple agree to arbitrate their dispute — someone can't be forced to enter into arbitration, it has to be voluntary — they first pick their arbitrator and then they pick their rules. Most of the time, the rules people choose are the principles laid out in the Divorce Act, the Family Relations Act and the more important parts of the Rules of Court relating to evidence and the discovery process.
When a couple agrees to arbitrate their dispute — you can't force someone into arbitration, it has to be voluntary — they first pick their arbitrator and then they pick their rules. Most of the time, the rules people select are the more important parts of the Supreme Court Family Rules relating to evidence, the discovery process and proceedings at trial.


Next, the couple will exchange documents and information that are relevant to the issues. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns and T4 slips might be exchanged. If a couple cannot agree on how a child should be cared for, they might hire a psychologist to prepare an assessment of the parenting arrangements that will work best for the child, usually called a "custody and access report" or a "section 15 report."
Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, Financial Statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged. If the parties cannot agree on how a child should be cared for, they might hire a psychologist to prepare a report on the parenting arrangements that will work best for the child, called a ''needs of the child assessment'', or they might hire a third party lawyer or a social worker to talk to the child and prepare a ''views of the child report''. The nature of the documents that are important and the extent of the disclosure which is required


Once the documents have been exchanged and the experts' reports prepared, the parties then attend one or more meetings with the arbitrator. These meetings are usually a lot less formal that court hearings, and there can be as much flexibility to the process as the parties will agree to. The meetings are sort of a cross between the informality of the mediation process and the rigid formality of the litigation process, and each party essentially attempts to convince the arbitrator and the other side that their proposed way of settling the dispute is the best solution for everyone.
Once the documents have been exchanged and the experts' reports prepared, the parties then attend one or more meetings with the arbitrator. These meetings are usually a lot less formal that court hearings, and there can be as much flexibility to the process as the parties will agree to. The meetings are sort of a cross between the informality of the mediation process and the rigid formality of the litigation process, and each party essentially attempts to convince the arbitrator and the other side that their proposed way of settling the dispute is the best solution for everyone.
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