Arbitration

Arbitration is a customized litigation-like process in a private forum with a selected paid decision maker. The parties “submit” to the arbitration process by signing an Agreement to Arbitrate which sets out, in part, the principles of arbitration, the scope of the matters being decided, and the sharing of fees. A second written agreement may be prepared and signed by the parties to deal with other procedural considerations negotiated by the lawyers in advance of the hearing.

Best-Suited Clients

The clients who are facing an arbitration hearing may have agreed earlier to use a hybrid process called mediation/arbitration. If any disputes arose subsequent to signing a separation agreement, court order, or prior arbitration award, then initiating this “secondary arbitration” process is the next step.

These disputes relate to the implementation or ongoing management of the settlement terms of the earlier process. For example, a former spouse may use this process to receive payment owed according to an agreed timetable.

Very often the mediation process helps clients find a way to resolve their differences prior the need to implement the secondary phrase of arbitration. If the mediation failed, the clients would now be preparing for the arbitration phase.

Private and Nimble

This approach is often selected because of the expectation of family privacy and the ability to select the arbitrator. The clients must have the financial resources to pay for a tailored, confidential process delivered expediently. However, the confidentiality of the process can be compromised by any subsequent appeal.

The nimbleness of the process may also appeal to those clients disappointed with the delays in the court process common in larger urban centres.

The Process

There are required process elements in place to safeguard the clients and the role of the decision maker. For example, prior to the start of any proceeding, the arbitrator must screen the couple for any power imbalances and incidents of domestic violence. The calling of witnesses, production of documents, and other steps in the hearing may mirror those of the court process to ensure fairness of process.

Cost

Arbitration is akin to dining á la carte. Expediency with a customized process will appeal to certain clients willing to shoulder the extra expense. The costs to negotiate all aspects of the process are expenses incurred before preparing for the hearing itself and those related expenses.

Arbitration also allows more access to the decision maker than would be available to litigation clients in the formal court setting. The integrity of the process necessitates fairness and even-handedness in dealing with the clients.

Timeline

As this is a private court, the lawyers and the arbitrator find a date convenient to all participants for the deciding of all preliminary matters and for the final hearing. Issues can be resolved in months rather than a potential timeline of more than a year using the public court process.

Results

The arbitrator prepares a written decision outlining all the evidence heard, a summary of the testimony of the witnesses, relevant facts, and data from experts’ reports. The award may be appealed to a public court, or the parties may choose to waive their right of appeal, rendering the award final and binding on the parties.

Despite best intentions and careful process negotiations, not all arbitrations run smoothly. The use of aggressive strategies will slow progress just as they may in the mediation, collaborative, or negotiation approaches.

Disputes may arise as to how the process was conducted after the award is granted. An unhappy result may lead to attempts to set aside the award on grounds that the arbitrator acted in an inequitable or biased manner, or the process was irregular. The availability of an appeal process may be specified in the Agreement to Arbitrate. If not, the parties will turn to the provisions of the Arbitrations Act for guidance.