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Arbitration is widely known as a dispute resolution process. Like litigation, arbitration utilizes an adversarial approach that requires a neutral party to render a decision.
Historically, arbitration has been used most widely in commercial disputes as a private alternative to litigation. Arbitration developed as a binding, adjudicative process. While these features closely parallel those of traditional court proceedings, there are important distinctions between the two processes.
In Canada, arbitration is regulated by statute. Every province and territory has its own separate arbitration legislation
While arbitration was by its very nature developed as a binding process, it can also be non-binding. It is generally voluntary, and parties normally can only be involved in an arbitration if they have agreed to be bound by that process
Unlike litigation, arbitration generally allows the parties to design most aspects of the resolution process to suit their needs and the nature of the dispute. Further, the parties to an arbitration are able to choose the arbitrator, an option which is not available in the traditional court system
Arbitration, an alternative dispute resolution process that handles family matters outside of court, is a great alternative for couples seeking a private and confidential process. The arbitration process is the one that’s most closely related to a court hearing in that any decisions made must be within the law of Ontario or any other jurisdiction. In fact, if an arbitrator makes a decision that is not in accordance with the law, such will not be enforceable.
Arbitrators dealing with family matters can handle issues ranging from marriage contracts, separation agreements, paternity, and cohabitation agreements. Parenting issues such as decision making, and parenting time disputes can be appropriately determined in family arbitration.
Arbitration can be a suitable method to resolve your family disputes if:
To begin with, both spouses must consent to the arbitration process. They will sign an arbitration agreement that clearly stipulates that both parties waive their right to go to court. This agreement also outlines, among other aspects, the person who is appointed as arbitrator, the issues to be arbitrated, how and when the process will be conducted. The agreement must be complete, covering all issues no matter how minor they may appear to be.
An issue cannot be decided by the arbitrator if it is not expressly included in the agreement. Therefore, any decision made regarding an issue excluded in the agreement will be unenforceable.
Arbitration is generally a faster, private, and easier process compared to going to a trial. The efficiency and cost of arbitration are the two key reasons why many couples opt for this process. A family dispute that may take months or years to reach a resolution in court can take a few weeks or months to be resolved through arbitration. The rules of the arbitration process also tend to be simpler and a lot more flexible compared to the court process. The lack of a technical and formal discovery process makes it easier for everyone to understand.
Additionally, family arbitration fosters respect between the two parties. Unlike going to trial, which can cause long-term conflict between the spouses, arbitration may help preserve a productive relationship which is critical, especially where children are involved. Since the outcome of the arbitration is usually private and confidential information, both spouses can be candid with each other and result in a more favorable outcome.
