How Do I Start Arbitration with My Spouse?

Pick the right moment

You can't force your ex to go to arbitration with you, you can only do it with their agreement. Of course, your ex isn't likely to agree to arbitration if they are still feeling pissed off about a recent argument or 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, inviting them out for a cup of coffee at the local Tim Hortons, and making your case to try arbitration rather than another process, like going to court:

"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 hearing 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 or important for your family,
• you can get the help of professionals like child psychologists, business valuators, and tax planners in the arbitration process,
• with input of the arbitrator, you can design the rules that will apply to the arbitration process,
• with input of the arbitrator, you can decide on the documents and information that will be needed for your hearing,
• the arbitrator's decision is just as final and just as binding as a court award,
• 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 almost always cheaper than litigation.

Going to trial will cost a minimum of $15,000 in lawyer's 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! As well, trials in court can take anywhere from eight months to two years to start.

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, you need to strike while the iron is hot and find an arbitrator as soon as possible.

Before hiring an arbitrator, make sure you've looked into their background to find out if they have special training in arbitration, and any special expertise or interest in the issues that are most important in your family law dispute. 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 arbitrators' association like the ADR Institute of British Columbia. 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 lawyer. Most family law lawyers will know one or two arbitrators they can recommend, and will be happy to give you those arbitrators' names and phone numbers.

You could also try doing an internet search for something like "family law arbitrator penticton" or "family law arbitrator parenting." Putting your search term inside quotes forces most search engines to look for the exact phrase you've used.

When you first speak to an arbitrator you're interested in hiring, be careful not to say too much about your case or your ex. It is very important that your arbitrator remain unbiased, and your ex will want to know exactly what you've said to the arbitrator about your relationship and your legal dispute.

What happens next

Once you've contact an arbitrator, they will reach out to your ex to confirm their interest in pursuing the process. They'll probably also send a copy of their standard arbitration agreement for each of you to look at. It's a good idea for you to get some independent legal advice about the agreement, as the agreement will describe:

• your responsibilities in the arbitration process,
• your ex's responsibilities in the process,
• the role of the arbitrator,
• how the arbitration will conclude, and
• the arbitrator's rates and when you will be responsible to pay for the arbitrator's bills.

The arbitrator will also schedule a conference to talk about the legal issues, schedule the place and date for the arbitration hearing, and work with you to develop the rules that will apply to the arbitration process. These rules are very important and will talk about:

• the documents and evidence you'll exchange with your ex before the hearing,
• the other steps that can be taken to get information about your case before the hearing,
• whether you will be hiring any experts to give opinions at the hearing,
• whether evidence will be presented at the hearing, and, if so, how it will be presented, and
• how arguments will be made at the hearing.

Don't skip this conference, it's very important!

For more information

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

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by John-Paul Boyd, May 11, 2019.

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.

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

A dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award that resolves the dispute and is binding on the parties. The arbitration of family law disputes is governed by rules set out in Part 2, Division 4 of the Family Law Act. See "alternative dispute resolution" and "family law arbitrator."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

In 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."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) 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."

(1) In 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. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

A 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."

The testing of the claims 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 decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

The 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."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A lawyer or another person with special training in the arbitration of family law disputes who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "arbitration."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

Facts, or proof tending to support the existence 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."