What is Binding Family Arbitration?
Like mediation, arbitration is a dispute resolution process which is an alternative to the traditional process of having courts settle disputes. In particular, arbitration is a process outside of court by which parties voluntarily agree to submit their family law disputes to a neutral third party, known as an arbitrator, to decide the outcome of their disagreements much as a judge would. The arbitration proceeding can be as formal or as informal as the parties like. The arbitrator considers arguments and evidence from all sides and then renders a written final and binding decision (subject to appeal rights). An underpinning of any arbitration process is the arbitration agreement between the parties in which they agree to, among other things: who will be the arbitrator, what powers the arbitrator will have, and what issues will be submitted for arbitration.
Arbitration is not the same thing as Mediation
While mediation and arbitration may have certain benefits in common, but they have very different purposes and notable differences. In the case of arbitration, you voluntarily agree to have an arbitrator, rather than a judge, make a legally binding decision regarding your family law matters in dispute. As is the case with decisions by a trial judge in court, decisions of an arbitrator may be appealed. In contrast, the mediator has no power to decide the outcome of the dispute. Instead, the role of the mediator is to facilitate an agreement between you and your spouse regarding your family law issues. If a couple cannot find resolution via mediation, they may seek recourse from the courts or other alternative resolution processes such as arbitration.
What are the Benefits of Arbitration?
The benefits of family law arbitration include:
- Arbitration is a Legally Binding Process – The binding nature of the decision brings closure regarding the matters in dispute allowing parties to move forward. In some instances, it can lead to parties being more open to negotiating a solution prior to the final determination of the arbitrator.
- It is a Mutually Agreed Customized Process – The parties can customize the process in their arbitration agreement to reflect their preferences. Therefore, the process can be very formal, almost like a court proceeding, or it can be much less formal, with significantly relaxed procedures.
- Freedom of Choice – The parties determine who to select as the arbitrator rather than “the luck of the draw” in court proceedings.
- All Parties are Heard – If either party has a very difficult time communicating with the former spouse, the arbitrator can work as a neutral party that listens to both sides without taking sides. Many people find it easier to contain their emotions if they feel someone is really listening to their side of the issue.
- Compliance – Arbitration decisions can be enforced by the Courts. – Mediation is less stressful than court proceedings and other dispute resolution methods and provides an excellent platform for compromise and amicable resolution.
As a dispute resolution process, arbitration has many benefits in common with meditation, including:
- Reduced Time and Expense – Compared to litigation generally, arbitrations can be heard and concluded more quickly and at less expense.
- Private/Confidential – unlike family law proceedings in open court, arbitration takes place in private, behind the closed doors of the arbitrator’s office, whether in person or virtually.
- Less Stressful – As the parties have mutually agreed to the rules and procedures and the degree of formality of the proceedings, arbitration can be less stressful than court proceedings.
Choosing the Right Arbitrator
While separation and divorce litigation may have broad general categories of disputed issues in common (such as the value, equalization and division of property, parenting, custody and child and spousal support), it is the circumstances, details and personalities involved that make the dispute between parties unique. To ensure a well-considered and neutral binding determination of your family law matters in dispute which takes into consideration the current state of the law, it is important to select an arbitrator who is trained, accredited, and experienced in family law arbitration and issues. It is these attributes that define Cheryl as an arbitrator.
Cheryl has nearly 40 years of experience as a family law lawyer and a Masters degree in counselling, is a Certified Family Law Specialist and is designated as an Accredited Family Mediator by the Ontario Association for Family Mediation and, as an arbitrator, a Designated ADR Professional of the ADR Institute of Ontario. Cheryl receives many awards and accolades for her work and contributions in the area of Family Law, including the Ontario Bar Association’s Award For Excellence In Family Law, which is awarded to a single outstanding nominee annually.