You don’t have to be embroiled in a family law dispute to know that trying to resolve family law matters through the court system is expensive and will likely take months or even years to complete. In the past, the traditional court process was seen as the only legal option available to families who couldn’t mediate solutions on their own. Thankfully times have changed!
There are now a number of widely accepted alternatives to the court process that are faster, generally less expensive, and often reduce the emotional stress associated with drawn out legal proceedings. One of these alternatives is Arbitration.
What is arbitration and why should I consider it?
In a court litigation situation, lawyers typically apply to the court to be heard on a day of their choosing, and then appear in court on that date, along with potentially dozens of other lawyers with their own applications, all hoping they will be heard that day. Often, due to judicial or staffing issues, they are not all heard and have to return days or even weeks later to try again. This results in added costs to the client, and delays in the process, not to mention the stress of reliving the emotional experience weeks or months down the road. This is simply not helpful for families in transition.
An alternative to this process is Arbitration, which is the private resolution of matrimonial disputes as part of a confidential process that doesn’t involve court. It’s like having a private trial, where the spouses can choose the process and select the person they wish to arbitrate the issues. A trained arbitrator is able to hear each side and make binding decisions that are enforceable, like court orders. The arbitrator can decide all of the outstanding issues between the spouses, or even as few as one, it’s up to you. You may also have your lawyer represent you in an arbitration if you so choose.
You can establish timelines with the arbitrator which work for you. You will know the date of your arbitration and that you have an arbitrator who will be available to hear your case. You will not be in open court, but in a board room with breakout rooms for privacy and confidentiality. The arbitrator will have agreed with you about when your decision will likely be available. You won’t have to potentially wait months for a decision, as is sometimes the case in court.
What is Interim Arbitration?
Interim Arbitration is useful when traditional court proceedings have already started, yet the resolution of certain time sensitive issues are being delayed by short staffed courthouses and the associated delays. These issues may include interim spousal or child support, children’s activities or expenses, and parenting time. Interim arbitration can resolve one or more of such issues quickly, leaving you free to resume litigation for other outstanding matters if you choose or, in many cases, provide you with a venue for resolving all of the issues..
Advantages of Arbitration and Interim Arbitration
- You can resolve urgent short-term legal matters quickly.
- Costs are more predictable and not subject to significant changes resulting from a shortage of judicial resources.
- You get to choose your own family law specialist as arbitrator – some arbitrators will even use videoconference if you live in a remote community!
- You get to pick the date and time to be heard, and avoid delays.
- You are not constrained by typical courthouse hours. Arbitrators are often flexible and can be available earlier and later in the day if necessary. They may also be able to extend the session if more time is needed.
- You avoid much of the emotional trauma associated with application delays.
- Proceedings can be confidential and not a matter of public record.
- Lawyers can agree in advance on what evidence is to be considered and how it is to be presented, which can save both time and money.
What are the limits of Arbitration?
- Arbitration requires both parties agree to the process, so if one party is not interested in pursuing this method of dispute resolution, it will not work.
- There may be less certainty about time and cost up front (but in most cases it is likely to cost less than the court process and take considerably less time).
If you are looking for a more efficient and cost effective way to resolve your family law disputes, even if litigation has already commenced, you may wish to consider Arbitration or Interim Arbitration.
Craig Neville, K.C. is a senior lawyer in our Family Law Group, and has extensive experience as an arbitrator, mediator, collaborative professional, and parenting coordinator.