In a meeting of Qualified Family Arbitration Screeners (QFAS) recently, my colleagues were discussing the current landscape of Family Law Arbitration and the changing face of it.
As an FDR professional newer to arbitration, I thought it best to go to two of my fellow FDRIO Board members to get their insight. You will likely be much more familiar with the names Cheryl Goldhart and Clayton Spencer than you are with mine.
Family Law has seen change over the last 2 years like we haven’t seen before. Recent federal Divorce Act changes and the backlogs in the courts due to Covid-19 have created a shift.
A shift in the way families interact with the courts as well as family law professionals. A shift in how we think about and address screening and domestic violence. A shift in outlining processes available to clients based on the requirement to try to solve issues through family dispute resolution processes, if appropriate.
If a paradigm shift is defined as “an important change that happens when the usual way of thinking about or doing something is replaced by a new and different way”, we have already experienced the shift.
Now the question is, how do we avoid going back to the same old way of doing things and the same old processes?
Ok, that’s a bit of a loaded question so I broke it down into smaller, more manageable, and practical questions that I raised with Cheryl and Clayton. I think you will find their experiences and honesty both refreshing and relatable.
What do you see as the biggest benefits of arbitration and the emerging trend towards mediation-arbitration?
Cheryl
Choosing the individual (a family law expert) who will facilitate a settlement or decide the case.
Convenience re process – which is determined with counsel (as formal or not as needed).
The med/arb process creates an interesting and ironic dynamic. When the mediator is also the arbitrator, there is always some thought in counsel and the party’s minds that if there is no settlement, the result may be as discussed/suggested at the mediation (even though the case may be very different when admissible evidence is considered). Obviously, no one says this out loud but in my view this is the psychology behind the success of the process. In the old days when Phil just told us what would happen, we just accepted it and settled. But that was Phil’s magic. No other mediator/arbitrator has the same special sauce, but I think to a lesser extent the dynamic is in play in every med/arb.
Clayton
Arbitration and mediation/arbitration bring many benefits to those that choose it. I agree with Cheryl that the ability to choose a decision-maker with specialized expertise is important. In addition, arbitration brings greater flexibility to the table. Arbitration is a system that can and should be tailored to the needs of the individuals who choose it. There is more control over process, and therefore more control of cost. If steps that would be required in a court proceeding are not needed or desired, they can be skipped. A good example is with motions to change. Currently, motions to change can take well over a year in court. In an arbitration, the matter could be addressed much more quickly. The speed of the process helps to keep costs down. Another advantage of the arbitration process is mandatory screening. Screening for domestic violence and power imbalance issues helps ensure the safety of the people using arbitration, and helps ensure the process is procedurally appropriate. There is no similar process in the Family Court.
Why is Arbitration often overlooked as a viable Family Dispute Resolution process?
Cheryl
I think many lawyers are just not familiar with the process and are afraid of it. They are concerned they don’t understand the process. Others see it as something very different than court and don’t feel they are experienced enough with the process. Others have preconceived notions about the expense of mediation and arbitration. It can be expensive but in most cases it will cost less than litigating in the courts. Many lawyers still believe that every file should start with a court application, and you cannot talk them out of it. Education is needed for clients and their counsel to consider this option early in the file and see if it makes sense on any particular file.
Clayton
I think there are a number of reasons. First, I don’t think the general public are aware of arbitration. Second, I think many lawyers aren’t really aware of it either. They may know in an abstract way that family arbitration exists, but they don’t really know how it can be used to the advantage of their clients. Third, I think many tune it out as an option because the arbitrator is paid. Why use an arbitrator when a judge is free? They don’t understand the overall cost advantage.
How do we broaden the landscape of professionals available for arbitration and mediation-arbitration? (From “old school” or “elite” to up and coming)
Cheryl
I would say there is currently a move to the younger group of mediators and arbitrators out of necessity as many more senior professionals have left the practice.
Clayton
The “elite” professionals tend to deal with a small subset of family law cases, as the majority cannot afford the rates charged by them. I think arbitrators need to broaden their focus, so that it becomes more attractive option for the middle class.
Could arbitration and mediation-arbitration help manage the backlogs and delays in family court?
Cheryl
Of course, yes. But there needs to be a buy in from the bar and bench. Some judges are overtly hostile to arbitration and others will refer only certain matters to onsite mediation (usually if it involves mostly parenting). Some lawyers will not even consider ADR and feel they will potentially get a better result if they let a judge decide. Also, notwithstanding many professionals are offering med/arb for case management of files already in court, these people are not getting the business that one would expect. Some people still want to see a judge. Others simply don’t like change.
Clayton
There are many cases in the court system that could benefit from arbitration. There is an old adage that justice delayed is justice denied. Justice in the Family Court is so delayed that there often is a denial of access to justice, for at least one of the parties to a dispute. The pace of human life is faster than the pace of the Family Court. Many court disputes could benefit from the speed and nimbleness of arbitration and mediation/arbitration.
Is there enough consideration for using arbitration to move an issue forward (even if in another process) without actually arbitrating all of the issues?
Cheryl
See above response. It’s a great idea but people aren’t doing it in practice.
Clayton
In my experience, little thought is given to using arbitration to move a different process forward. That is unfortunate, as the flexibility of arbitration can help remove deadlocks and get other settlement processes moving again. A good example of how arbitration can help move another process forward is where the parties differ significantly on the date of separation. An arbitrator could hold a hearing and determine the issue, and then the parties could return to their prior process, whether that was a traditional negotiation, a mediation, or even collaborative law.
Is the cost of FDR a challenge?
I always struggle with questions on cost but I so often hear it used as an reason not to use FDR. What are we comparing the cost to? Comparing the cost of an FDR professional with a judge? Comparing FDR processes with the cost of preparing for a trial, the cost of unresolved conflict, or the cost of families living in limbo?
Clayton
When the overall cost of arbitration is measured against a traditional Family Court litigation, nine times out of ten, the arbitration will be less expensive, even though the parties pay for both their lawyers and the arbitrator. The flexibility and speed of arbitration makes this possible, while mandatory screening makes the process safer. For the majority of contested matters, arbitration is simply the better process.
Are the well-known costs of the “elite level” professionals a barrier?
Cheryl
It seems that there are many professionals at various cost so that separating spouses can find someone if they look.
With the knowledge that arbitration and mediation-arbitration are here to stay and the additional insights from Cheryl and Clayton, I will go back to my initial question – How do we avoid going back to the same old way of doing things and the same old processes?
Reasons such as the lack of familiarity, understanding, experience, awareness, and education can all be addressed. Lack of interest, perhaps less so, but I am still hopeful.
It would seem that we are at a crossroads for FDR in the current landscape. We know going back to the days before March 2020 is not possible, but at the same time the path forward may seem unclear.
As FDR professionals, FDRIO is up for the challenge. Are you interested in helping us change the landscape?
Thank you to Cheryl and Clayton for your time and insight!