- April 1, 2019
- Posted by: Tricia Wong
- Categories: Family Dispute Resolution (FDR), FDR Updates, FDRIO News
Letter to the editor, National Post, re: March 29, 2019 ,“Arbitrator sides with Ontario parent who refuses to immunize children, cites anti-vaccination ‘expert’.“
By: The Board of Directors, Family Dispute Resolution Institute of Ontario (FDRIO)
The outpouring of public commentary about a recent family arbitration cries out for clarification.
There seems to be much misinformation and mistrust about family arbitration. Yet most family arbitrators are experienced, caring professionals. Most arbitrations are successful in the opinion of the parties who participated in them.
We express no view on the merits of the decision of Arbitrator Fogelman, a respected lawyer, mediator and arbitrator. However, our organization’s requirements for Certification, Standards of Practice and Complaints policy provide some answers to the questions this case raises.
Family Arbitration offers many benefits in appropriate cases. It can be faster, more efficient and more consistent with the principle of ‘self-determination’ than litigating. Parties choose their arbitrator and largely design their process.
Family arbitrators are governed by law and, if Certified by FDRIO, must comply with our Standards of Practice. Where those Standards are followed, family arbitration is usually a safe, affordable, effective and satisfactory way to resolve disputes.
What are some of the key principles of family arbitration?
Perhaps most important is the requirement that family arbitrators screen for suitability. “Do No Harm” and “Respect the Rights of Children” are among our Standards of Practice. Arbitrators have the legal duty to assess power imbalances and other factors that may make a case inappropriate. They must determine whether the needs of the family can be fully, fairly and safely addressed in private adjudication, or would the publicly accountable and resourced court, or some other process, be a better option.
Does the Office of the Children’s Lawyer need to be involved? Does a party need legal advice that a Duty Counsel could provide? These are things that an arbitration cannot offer. It is the arbitrator’s duty to decide if the court is a better option for this child and family in the circumstances.
Our Standards require 21 hours of training in screening for power imbalances, more than what the province mandates, so that arbitrators will be qualified to identify cases that are inappropriate for private adjudication. Power imbalances include domestic violence that renders a situation unsafe to financial inequalities that could make the process unfair. Our Standards require arbitrators who work with unrepresented clients to ensure their process manages any power imbalances arising from this disparity or else not take the case.
Some more important points.
Family arbitration is a choice. Parties who choose to arbitrate sign a detailed contract before they begin and must have independent legal advice before doing so.
Parties negotiate the terms of their contract. This includes forms of evidence that the arbitrator will hear. Clients also negotiate their rights of appeal, which can be broad.
The parties in this case were therefore, presumably, well-advised by lawyers, as well as the professional who assessed power imbalances, whether arbitration was appropriate for their family before it started, what evidence would be given and what their appeal rights would be.
Family arbitrators are required to apply Ontario law and only Ontario law , based on the evidence before them. They cannot make up their own idea of fairness, as some comments suggest. They are bound to make decisions in the best interests of children, just like judges. They also have the authority, under most Arbitration Agreements, to retain their own expert where they feel the evidence before them is deficient or one-sided.
Contrary to much comment about this story, there are many ways of keeping family arbitrators competent, including ongoing education requirements of the government and FDRIO, appeal rights and the ability to have arbitration awards set aside for a failure of natural justice. Arbitrators who fail to comply with their duties face several penalties, including accounts assessments and complaints to FDRIO, if they are certified by us, and other governing bodies.
Being unhappy with an arbitrator’s decision does not give license to publicly complain about it nor should the arbitrator be dressed down or called to account for their decision. This is problematic for many reasons including the confidential nature of arbitration and the fact that the other party and the arbitrator cannot provide their views for balance. The proper route is an appeal to court within 30 days or an application for judicial review alleging a failure of natural justice.
The Arbitration Act Regulation on family arbitration is just over 11 years old. FDRIO’s Standards of Practice and Complaints Process are evolving. The public commentary on this case raises legitimate questions that we take seriously as we consider how best to promote the use of properly designed and delivered family arbitration while protecting the public interest. We welcome suggestions as to how we can do better.
*The Family Dispute Resolution Institute of Ontario (FDRIO) , a voluntary-members not-for- profit organization, exists to create and enforce the highest possible standards for the practice of family dispute resolution in Ontario, including arbitration.