Michael Ford (post until Oct. 31/19)

Alternatives to family law litigation: arbitration

In the final instalment of a two-part series on litigation alternatives, Toronto family lawyer and mediator Herschel Fogelman discusses arbitration.

Properly conducted arbitration often works out to be less expensive than litigation despite its similarity to the court process, Toronto family lawyer Herschel Fogelman tells AdvocateDaily.com.

Fogelman, founder and principal of Fogelman Law, says the fundamental difference between the two is that the parties to an arbitration pay someone to adjudicate their dispute.

Despite that additional expense, he says family law litigants who opt for arbitration over court tend to have already narrowed down the issues.

“Often, arbitration follows mediation. In the mediation process, it is common that some, but not all, the issues are resolved. Or, there are discreet threshold issues that need resolution, so that a comprehensive settlement may be achieved. As such, the parties and the arbitrator can focus on very discrete issues, such as specific parenting disputes or fights over specific financial issues," Fogelman explains.

"Litigation costs are often proportionate to the management of the matter — the more carefully managed, the lower the costs.”

In addition, he says the arbitrator can increase efficiency by "managing or bypassing many of the procedural steps statutorily required before a trial, and by using the time allotted at the hearing more efficiently."

“The court day starts at 10 a.m., and then you have a 30-minute break mid-morning, plus a 90-minute lunch and another 30-minute break in the afternoon before you leave at 4:30,” Fogelman says. “The average court day is about six hours when all is said and done. Conversely, in an arbitration, the day can start at 9 a.m. or whenever the parties want, and then work through the day with a short lunch break and fewer institutional breaks. On average, I would say that an arbitration day is closer to 7.5 or eight hours.”

By the time three days have elapsed, he says an arbitrator can hear almost twice as much evidence as a judge in court.

“Overall, the arbitration ends up being less expensive because you have more control over time and can therefore ensure that the matter is completed within the allotted time. There is less danger that a three-day hearing will turn into five days,” Fogelman says.

The flexibility of arbitration also allows all parties to design a process that suits them, and dispense with unnecessary formalities, he says.  

“We have a little more latitude than judges to tailor the process,” Fogelman says. “Hearings may be conducted by way of affidavit evidence in lieu of evidence in chief, with limited cross-examination. Alternatively, the parties might agree that all the evidence be in written form with the right to make submissions."

Fogelman advocates using the "final offer selection" process. 

"It's particularly well suited to certain family law issues — such as the choice of a residential schedule, calculations of arrears or retroactive support. The process is hugely efficient and cost-effective," he says.

“Arbitration agreements usually give the arbitrator the authority to break impasses over the management of the process, and because I’m just a phone call or email away, procedural questions or impasses can be dealt with very quickly, rather than requiring a further attendance, which is almost always required in court,” Fogelman adds.

He says the family law court system also builds in at least three conference appearances with judges geared towards settlement that are not required in arbitration.

“You can anticipate that each of those appearances will cost you around $5,000, so that’s $15,000 that is not needed when I’m engaged to arbitrate,” he says. “We’ll set a time and have a conference call or management meeting that takes about 90 minutes. There are no documents produced, and you don’t need a brief. I just need to know what the case is about.

“The costs are reduced because I can streamline the process and get you to the finish line quicker and without so many impediments,” Fogelman says.

A recent survey of practitioners by the Canadian Forum on Civil Justice suggests there is room for greater adoption of arbitration in Ontario, with just 28 per cent of practitioners in this province reporting that they use it to resolve family disputes over matters including custody and division of property. 

The survey, conducted in partnership with Canadian Research Institute for the Law and the Family, canvassed 160 family lawyers from British Columbia, Alberta, Ontario and Nova Scotia on the use of litigation, mediation, collaboration and arbitration in their practice.

Alberta lawyers were the most likely to utilize arbitration, with nearly 39 per cent of respondents from that jurisdiction reporting its use as part of their family law practices.

To read part one of the series, in which he tackled mediation, click here.

To Read More Herschel Fogelman Posts Click Here
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