Co-Chairs

Judith Nicoll (jnicoll@mcinnisandnicoll.com)  •  Clayton Spencer (clayton@claytonspencer.com)

Family arbitration and mediation-arbitration is a growing area of practice across Ontario. Our large group of new and experienced family arbitrators meets from time to time to discuss our evolving standards of practice, recent case law, best practices, standard form agreements, and to share knowledge and fellowship.

We have established criteria for the FDRP Arb designation and will continue to work with trainers to help them develop useful courses, internship, and mentorship opportunities for those seeking to become certified.

ARBITRATION

Family arbitration is a form of private, binding adjudication that resembles the court process in some ways and is very different in others. It is a good process choice for separating couples that prefer to choose their adjudicator and seek the confidentiality of private arbitration. In many cases, arbitration is more cost-effective than traditional court litigation. The arbitrator is empowered by law and by contract to make binding decisions on issues dealing with custody, access, division of property and spousal and child support.

A critical defining feature of family arbitration is that the arbitrator has a duty to ensure that power imbalances, including those arising from domestic violence, have been identified and assessed, and can be effectively managed in a process of private adjudication.  Under the law, family arbitrators are responsible for ensuring that the cases they agree to arbitrate are in fact appropriate for private adjudication. Some cases may not be appropriate for arbitration.  For example, if the Office of the Children’s Lawyer should be involved, or a party might benefit from the free legal or domestic violence support available in the courts, or if the matter requires protection orders or other immediately enforceable orders, private arbitration may not be the best process choice.

FDRIO has developed Guidelines for Screening for Power Imbalances Including Domestic Violence for our member Arbitrators to follow as they reflect the best practices in the field.

An arbitrator is only authorized to determine issues over which they are granted jurisdiction in the parties’ Arbitration Agreement.  To  have an enforceable Arbitration Award, all parties must receive independent legal advice before signing their Arbitration Agreement.  Arbitration Awards may be appealed in accordance with the appeal rights set out in the Arbitration Agreement.

MEDIATION-ARBITRATION

As the name suggests, this is a hybrid process where one person is designated as a mediator-arbitrator. The mediator-arbitrator conducts a mediation to resolve the issues in the case.  If the mediation is unsuccessful, the parties begin a separate and distinct arbitration process. The goal of this part of the process is not to reach a settlement, but to ensure that each party has an opportunity to make their case to the arbitrator and respond to the other person’s case at a fair and impartial hearing. After the hearing is finished, the mediator-arbitrator will issue an award.  The award is binding on both parties, much like a court order.  To ensure that the case is appropriate for the process, screening for power imbalances including family violence is conducted. In family mediation-arbitration, the professional is required to conduct their own screening, before the mediation-arbitration agreement is signed, as would any family mediator. See the FDRIO Screening Guidelines for more detail.