Arbitration is an alternative dispute resolution process, where an individual or tribunal acts in a judicial capacity, by hearing evidence and rendering an Award.  In a family law setting, there is generally a single arbitrator and he/she is given jurisdiction over the subject of the dispute by contract, namely an arbitration agreement.  The arbitrator then hears the issue in dispute and renders an award.  The award has the same effect as a court order and is binding on the parties.  Similar to a court order, an arbitral award may be appealed but unless it is overturned on appeal, it has the same force and effect as an order of the court.

There are many misconceptions regarding arbitrations.  The first is that all arbitrations are binding.  Put a different way, there is no such thing as non-binding arbitration.  The second is that an arbitration is not a mediation.  A mediation is a process where the parties attempt to reach a compromise and the mediator’s role is to advance and facilitate the dialogue necessary to achieve that compromise(s).  An arbitrator has no interest in compromise. The arbitrator’s statutory and contractual duty is to apply the facts to the law and render an award.   The third is that arbitral award is discounted by a court.  In fact just the opposite is true.  As most arbitrators are senior lawyers with subject matter expertise, judges are very reluctant to set aside their awards on appeal.  Judges are bound in any event to give specific deference to awards made, unless there has been significant and obvious errors.

There are many advantages to the arbitration process.  As indicated, the arbitrator is chosen, and unlike a judge, he or she is generally chosen due to his/her subject matter expertise.  In our courts, judges are generalists and may not have practiced family law or have a high level of expertise in that area.  Arbitrations are private, and unlike the court process all the documents and evidence is strictly confidential.  Arbitrations can be tailor-made to the issues in disputes and often the process is streamlined in a way to meet the particular needs of the parties.   For example, parties may choose to give evidence in affidavit form or only in writing and the parties can make other agreements relaxing or tightening the rules of evidence.  Similarly, arbitrations can be specifically timetabled and scheduled to meet the needs of the parties.  For example, many arbitrators will hear evidence on the weekend, or after hours.

Arbitration is an alternative dispute resolution process, where an individual or tribunal acts in a judicial capacity, by hearing evidence and rendering an Award.  In a family law setting, there is generally a single arbitrator and he/she is given jurisdiction over the subject of the dispute by contract, namely an arbitration agreement.  The arbitrator then hears the issue in dispute and renders an award.  The award has the same effect as a court order and is binding on the parties.  Similar to a court order, an arbitral award may be appealed but unless it is overturned on appeal, it has the same force and effect as an order of the court.

There are many misconceptions regarding arbitrations.  The first is that all arbitrations are binding.  Put a different way, there is no such thing as non-binding arbitration.  The second is that an arbitration is not a mediation.  A mediation is a process where the parties attempt to reach a compromise and the mediator’s role is to advance and facilitate the dialogue necessary to achieve that compromise(s).  An arbitrator has no interest in compromise. The arbitrator’s statutory and contractual duty is to apply the facts to the law and render an award.   The third is that arbitral award is discounted by a court.  In fact just the opposite is true.  As most arbitrators are senior lawyers with subject matter expertise, judges are very reluctant to set aside their awards on appeal.  Judges are bound in any event to give specific deference to awards made, unless there has been significant and obvious errors.

There are many advantages to the arbitration process.  As indicated, the arbitrator is chosen, and unlike a judge, he or she is generally chosen due to his/her subject matter expertise.  In our courts, judges are generalists and may not have practiced family law or have a high level of expertise in that area.  Arbitrations are private, and unlike the court process all the documents and evidence is strictly confidential.  Arbitrations can be tailor-made to the issues in disputes and often the process is streamlined in a way to meet the particular needs of the parties.   For example, parties may choose to give evidence in affidavit form or only in writing and the parties can make other agreements relaxing or tightening the rules of evidence.  Similarly, arbitrations can be specifically timetabled and scheduled to meet the needs of the parties.  For example, many arbitrators will hear evidence on the weekend, or after hours.

Herschel Fogelman
Basman Smith LLP

For more information or to speak with Herschel directly please visit  http://divorceangels.ca/vendor/herschel-fogelman-2/?r=8269