Family Law Arbitration: Difference between revisions
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→Arbitration processes
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A lot of the time, the rules that people select are taken from the more important parts of the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, their dispute and their finances. | A lot of the time, the rules that people select are taken from the more important parts of the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, their dispute and their finances. | ||
==== | ====An outline of the basic arbitration process==== | ||
Most of the time, the next step after the initial meeting requires the parties to 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. | Most of the time, the next step after the initial meeting requires the parties to 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. | ||
For complicated problems, the parties might also hire an expert to give an opinion about things like the value of a pension, a tax problem or the best parenting arrangements for the children. That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor or social worker. | For complicated problems, the parties might also hire an expert to give an opinion about things like the value of a pension, a tax problem or the best parenting arrangements for the children. That last kind of opinion is called a ''parenting assessment'' or a ''section 211 report'', and is usually prepared by a psychologist, clinical counsellor or social worker. | ||
The nature of the documents that are important, the extent of the disclosure that is required and the type of expert opinions that are most useful will change depending on the circumstances and how the parties decide to approach the arbitration process. | The nature of the documents that are important, the extent of the disclosure that is required and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues and how the parties decide to approach the arbitration process. | ||
Once the appropriate documents have been exchanged and any opinions have been completed, the parties will attend the hearing with their arbitrator. These hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, and are usually less formal than court hearings; arbitration processes can be as informal as the parties and the arbitrator want. | Once the appropriate documents have been exchanged and any opinions have been completed, the parties will attend the hearing with their arbitrator and with their lawyers, if they have any. These hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want. | ||
At the hearing, each party makes an opening argument describing the evidence that will be given and presents their evidence | At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer. | ||
After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them. | After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them. | ||
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====Alternative processes==== | ====Alternative processes==== | ||
Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have witness who give oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. And, if the parties agree, awards can be giving orally, rather than in writing. | |||
Here are some examples of alternative arbitration processes: | |||
# The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.) | |||
# If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the testimony of any witness. | |||
# If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness. | |||
# If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available in litigation, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.) | |||
# Where neither party is represented by a lawyer, the hearing could be in-person but be managed by the arbitrator like an inquisition. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses. | |||
The only rules that ''must'' be followed in an arbitration are that the arbitrator must give each party the opportunity to make their case, and reply to the case made by the other party, and that the arbitrator must treat each party fairly and not be biased in favour of one party over the other. Otherwise, the parties and the arbitrator are free to be creative and create the rules that are best-suited to the parties, their children, their dispute and their budget. | |||
===The ''Arbitration Act''=== | ===The ''Arbitration Act''=== | ||
