Family, Mediation

Family arbitration can help break a deadlock and preserve dignity

When it comes to family law proceedings, agreements that parties reach themselves tend to be the most lasting and meaningful, says Oakville family lawyer and mediator Cathryn Paul.

And often, says Paul, these types of agreements are achieved through mediation.

“Overall, I think the best solution is one the parties reach themselves through mediation,” she says. “However, when people get stuck and can’t reach an agreement, there needs to be a process that will get them through to resolution in a respectful, efficient and cost-effective way, and that’s where I see arbitration coming in.”

Paul works within both practice models, and says in many cases she uses mediation-arbitration, where, parties try to “come up with an agreement through mediation first, and if they can’t, we switch to arbitration.

“That’s where I would make a decision based on the evidence presented and the law. It’s a more formal process,” says Paul. “It ends with a resolution and parties don’t have to go to court. An arbitration decision is enforceable as a court order.”

And the process has flexibility built in, says Paul.

“Sometimes people will reach a resolution on some of the issues in mediation but there may be one they just can’t agree on. In that case, we can just do arbitration on a single issue. We can also design the process to fit the issues and dynamics. Some arbitrations are conducted in person, and some are done with written evidence.”

Compared to a trial, Paul says mediation and arbitration offer time and cost-saving benefits.

“With a court decision, you often have many in-person appearances. You would generally have at least a case conference, settlement conference and trial management conference as well as one or two motions before you even get to trial,” she says.

“Trial is often at least a year off when you start a court application, and each appearance costs a lot in terms of lawyers’ fees and time away from work. It can be quite an emotionally and financially draining process. With arbitration, decisions can be fast-tracked. You can often arrange for arbitration hearings to start within the same month of starting the process. Decisions would be out 30 days after the hearings are completed and then parties can move on.”

There are fees paid to the arbitrator, whereas there are no fees for a judge, says Paul, but given that much less time is spent in arbitration, parties are still likely to save money.

It’s important to note that not every case is suitable for arbitration, says Paul, and a screening process is in place to determine the best candidates for the resolution method.

“You’re in a room without a police officer and without the security measures that there would be in a courtroom,” she says. “One of the first things we screen for is domestic violence and power issues to make sure there isn’t undue influence of one party over another. We look to see that they can both come to the table with a sense of balance. With arbitration I don’t take unrepresented parties, so I’d want to make sure that the counsel buy into the arbitration process and are willing to work with me in terms of what that process will look like.

“Generally what I look for is civility; that people will approach this in a way where they’re coming here to get a resolution and understand it’s not necessarily going to go their way but they respect the process.”

When it comes to collaborative approaches like mediation and arbitration, Paul says there can be misunderstandings around who may be suitable for the processes.

“They don’t have to be best friends,” she says, noting while not everyone understands the processes, she’s pleased to see these approaches becoming more popular.

“I think more people are aware of mediation; they’re hearing about it more often from friends who have gone through separations,” she says. “Lawyers are promoting mediation, and they’re hearing about it through the mandatory information programs at the courthouse.”

But when it comes to arbitration, the public still has a lot to learn, says Paul.

“I don’t know that there’s as much awareness out there on arbitration. People seem to think they either have to come to an agreement or go to court. People are aware of arbitration in terms of labour-relations, commerce, and professional sports, but it’s not given much thought when it comes to family law. I find that generally lawyers are suggesting the process to clients, rather than clients seeking it out themselves.”

The impact of out-of-court resolutions varies depending on the area of law, but in family law, it’s especially important, says Paul.

“In business you want things to be civil, but in family law it’s especially significant where there are children involved,” she says.

“There needs to be an ongoing relationship. The arbitrator not only has to know the law and the evidence, but needs to have a good understanding of human dynamics and behaviour, and the importance of these people working together in the future. You have to be really careful not to ruin relationships through the process that you follow. Overall, there needs to be an atmosphere of respect," says Paul.

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