Difference between revisions of "Family Law Arbitration"

Arbitration is a dispute resolution process in which the parties hire a neutral third party, a ''family law arbitrator'', to make a <span class="noglossary">decision</span> resolving their dispute. The parties will sign an arbitration agreement to start the process and this agreement says, among other things, that the parties <span class="noglossary">will</span> be bound by the arbitrator's decision. 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 <span class="noglossary">act</span> like a judge and impose a resolution, after hearing the evidence and listening to the arguments of each party.

Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes, probably because most lawyers figured that if they have to have somebody impose a decision in a case, it might as well be a judge. Arbitration was most often used in a labour law context; in other places, such as Ontario and Alberta, the arbitration of family law disputes is commonplace. The ''[[Family Law Act]]'', however, made a number of changes to the law that improved the usefulness of arbitration in family law disputes.

Arbitration has a number of advantages as a way of resolving family law problems:

#it allows the parties 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, the care of children, tax problems, or property issues,

#it allows the couple to pick the particular rules that will apply to the hearing and decision-making process,

#the arbitration process is private, confidential and closed to the public, and

#the result of the process is an award that is just as binding as a court order and is enforceable just like a court order.

As well, it's often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can usually be booked within eight or ten 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.

When parties agree to arbitrate their dispute — you can't force someone into arbitration, it has to be voluntary — they first pick their arbitrator and then meet with the arbitrator to discuss the process leading to the arbitration hearing and pick their rules. Most of the time, the rules that people select are the more important parts of the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] relating to evidence, experts, and hearing procedures.

Next, the parties will exchange 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 ''parenting assessment'' or a ''section 211 report'', or they might hire a different 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 that is required will change depending on the circumstances and how the parties decide to approach their dispute. There's more information about parenting assessments and views of the child reports in the introduction section of the [[Children_in_Family_Law_Matters|Children]] chapter.

Once the appropriate documents have been exchanged and any reports have been completed, the parties will attend one or more hearings with their arbitrator. These hearings 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.  

At these hearings, each party presents their evidence, which may include witnesses who give testimony or may be limited to documents and affidavits. Each party then makes arguments to show the arbitrator why the arbitrator should make a particular decision.

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.

Arbitration is very flexible and very useful. Parenting coordinators use a process a lot like arbitration to make a decision resolving a disagreement when the parents aren't able to agree on the resolution of the dispute. The flexibility of arbitration means that people can ask their arbitrator to make a decision based on the rules of a religion.

Only a few circumstances make arbitration a necessary choice over mediation, collaborative settlement processes, or court. Typically, a couple will choose arbitration if:

*they wish the laws of their religion or another set of principles to apply to the proceedings,

*their positions are too far apart to make negotiation or mediation a reasonable choice and must have a decision made for them, but don't want to go to the expense, anxiety and acrimony typically involved in litigation,

*they want to resolve their dispute discreetly and privately, and don't want to risk things being made public,

*the issues are complex and require a decision-maker who is a specialist in the area, or

It's important to understand that while arbitrators can make awards on all of the usual family law issues, including parenting arrangements, contact, child support, spousal support and the division of property and debt, arbitrators cannot make awards on issues that require the order of a judge. These issues include:

*divorce orders,

*orders appointing someone as the guardian of a child who is not a parent,  

*declarations about who is, and who is not, the parent of a child,

*orders changing the order of a judge, and

*orders changing an order made in another province, territory or country.

* [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service].

{{REVIEWED | reviewer = [[John-Paul Boyd]], May 10, 2019}}