Family Law ARBITRATION

In order to handle a divorce and any related issue, you can choose to litigate through the court system, you can mediate, you can engage in the collaborative law process or you can arbitrate. This article will focus on the arbitration option.

What Is Family Law Arbitration?
In arbitration, the parties submit a dispute to an impartial person (the Arbitrator) for decision by that impartial person. An arbitration can be scheduled and the dispute resolved quickly. Arbitration is much less adversarial than litigation. An arbitration proceeding is conducted very much like a court hearing, but is usually less formal. The Arbitrator swears in the parties at the onset of the arbitration hearing. Once sworn in, each party remains under oath. Alternatively, the parties may submit their evidence with affidavits under oath. Each party presents witnesses and evidence. The hearing is conducted in a stream-lined fashion. The Arbitrator will rule on the admissibility of evidence and submits an award with written reasons after hearing the case. The Arbitration Award is enforceable, although there may be rights to seek re-argument, modification or clarification of an award and in limited circumstances, appeal is available.



Arbitration is private. The Arbitrator is independent and selected by the agreement of the parties. Thus, the parties are able to select an Arbitrator who has specialized expertise and who is available to quickly, discreetly, and effectively decide their issues.

What Is The Difference Between Mediation And Arbitration?
Mediation and arbitration are two very different approaches but ones that share a common theme – staying out of court. In mediation, the parties use a neutral party (a facilitator) to assist them in resolving their dispute. In mediation, if the parties do not agree on the outcome, the matter is not resolved. Therefore, in mediation, the outcome is completely within the control of the parties. However, mediation does not guarantee a final resolution. Arbitration relies on a neutral party – essentially a private judge –hearing the evidence from the parties and rendering a binding decision. Arbitration ensures a definitive outcome – one way or the other – in a timeframe that is shorter than a court could accomplish.

The differences between mediation and arbitration relate to the difference between a rights-based process and a needs-based process. In mediation, the parties retain responsibility for, and control over, the dispute and do not transfer decision-making power to the mediator. In arbitration, the outcome is determined by the arbitrator in accordance with the applicable law based on the evidence produced at the arbitration hearing. In mediation, any outcome is determined by the will of the parties. In crafting an outcome, the parties can take into account a broader range of interests. Mediation is often described as an interest-based process, whereas arbitration is described as a rights-based process.

In arbitration, a party's task is to convince the Arbitrator of their case. The parties address their arguments to the Arbitrator rather than to the other side. In mediation, since the outcome must be accepted by both parties and is not decided by the mediator, a party's task is to convince, or to negotiate with, the other side.

In mediation, either party can withdraw at any time; in arbitration, both parties must agree to withdraw from the process. Mediation is a more informal procedure than arbitration.

What Is Med/Arb?
Med/Arb combines mediation with arbitration. Arbitration may be the incentive for a good faith commitment by both parties to the mediation process, since the consequence of a failure to reach an agreed settlement will be the financial and management commitment that would be incurred in the subsequent arbitration procedure.

What Is The Difference Between Arbitration And Litigation?
Litigation involves a lawsuit that is heard in court by a judge. Arbitration, on the other hand, is based on contract. Your rights are provided in the agreement to arbitrate between the parties and the Arbitrator.

What Are The Advantages Of Arbitration Over Litigation, Court Hearings, And Trials?
Using the arbitration process to resolve a family law dispute is quicker than relying on the in-court litigation process. It is more confidential than the open court format, and it is more cost effective than the lengthy, protracted litigation model.

There is usually less discovery in arbitration and this means that it is less expensive and faster. Depending upon the case, having less discovery can be helpful, or may make the case more difficult for a party to win. On the other hand, because it is faster and limits discovery, arbitration may be less expensive, and you may get an “award” sooner than if the same case were litigated in court.

Sometimes when a litigated case becomes prolonged and expensive, arbitration may be a means to stop ceaseless litigation. Spouses or families who have been involved in years of litigation may welcome the chance to have their case heard, once and for all, and may agree not to appeal the outcome, no matter what the result.

Selection of a respected, knowledgeable Arbitrator insures that results will be fair. 
In addition, if all the issues in a case except one--for example, spousal support- are resolved, the parties may want to move the case along by having an Arbitrator decide this final issue. 
Finally, issues that must be resolved within a certain period of time might be resolved more quickly by an arbitrator.



Arbitration can be a useful alternative in cases that have been prolonged because of court schedules, provided disclosure is complete. Use of an Arbitrator may drastically cut short the waiting period to have a case tried.

Because the parties in an arbitration are encouraged to participate fully in structuring the process, they are often more likely to work together peaceably rather than escalate their angst and hostility toward one another, as is often the case in litigation.

Arbitration is usually far less costly than proceeding through litigation because the process is quicker and generally less complicated than a court proceeding. While the parties have to pay the Arbitrator’s fees (compared with litigation where the judge is provided to decide the case), you get the Arbitrator’s undivided attention on specific dates and times that are scheduled by the parties in advance. That ensures that everyone’s time is concentrated on resolving your issues so there is no waste of time. The lengthy in-court divorce process involves many unproductive lawyer hours that are spent in court for case management conferences, judicial case conferences, and the like. Also, significant time can be spent waiting for a judge or master to hear an interim matter (in Chambers) as court dockets are crowded and there are many people in front of you. In arbitration, you book time directly with the arbitrator and his or her time (which you pay for) is devoted solely to you and your matter; there is no waiting time. Moreover, since court schedules are controlled by the judge, a judge will dictate when and how long you and your lawyer will spend in court, even if your case is waiting its turn while the court handles other matters. The court may have little consideration for the economic ramifications and the impact on your personal and work schedule. The result is that the in-court process wastes many hours for which you will have to pay your lawyer to appear in court. Selecting a qualified, experienced, neutral Arbitrator allows you and your spouse/family to control the process and obtain a decision on disputed issues at your pace, discreetly and with finality.

Unlike trials, which must be worked into overcrowded court calendars, arbitration hearings can usually be scheduled around the needs and availabilities of those involved, including weekends and evenings.

In Arbitration, unlike in litigation, the often convoluted formal rules of evidence and procedure are replaced with arbitration rules. In most instances, arbitration dispenses with the discovery procedures that are often utilized as delaying and game-playing tactics in litigation. In arbitration, most matters, such as who will be called as a witness and what documents must be produced, are handled with a simple telephone conference.

Arbitration proceedings are generally private. Parties often agree to keep the proceedings and terms of the final resolution confidential. If the subject matter of the dispute involves embarrassing personal information or private business or financial information, the parties may prefer arbitration.

Are There Disadvantages To Arbitration?
The parties to arbitration are responsible for payment of the Arbitrator. Most Arbitrators require a retainer in advance of the hearing.

There are few grounds for appeal.

How Do I Initiate A Family Law Arbitration?
In British Columbia, the parties must agree to arbitrate their dispute. The agreement to arbitrate may be made by prior agreement. The part of an agreement or contract authorizing arbitration is often called “the arbitration clause.” An arbitration clause will include provisions dealing with appointment of the Arbitrator, the availability of discovery in the arbitration process and may designate a specific Arbitrator to handle the arbitration.

Parties may put an arbitration clause into a separation or other agreement, or amend an agreement to add an arbitration clause. If there is no prior agreement to arbitrate, the parties will enter directly into a contractual agreement to resolve a specific dispute or their entire matter with an Arbitration Agreement.

The courts will enforce an arbitration clause. That means that if the other party (parties) starts a lawsuit, and the parties, in their arbitration clause, had agreed to arbitrate that dispute, then a court will direct the parties to arbitrate the dispute and will put a halt to the litigation.

What Qualities Should I Look For In An Arbitrator?
You will want to consider the Arbitrator’s substantive experience. Since your case will be decided by the Arbitrator, it is important to give a great deal of thought to the identity, experience, and qualifications of the Arbitrator. The lawyers for each party can assist the parties in choosing the right Arbitrator. The Arbitrator should be an experienced family or estates’ lawyer or a former judge qualified by the Law Society. Unlike a judge, Arbitrators are paid by the parties, not by the government. The parties must resolve who will pay for the Arbitrator before the arbitration begins.

What Questions Should You Ask Your Arbitrator?
1. What type of arbitration training do you have?
2. Have you received any certifications, awards or fellowships?
3. What percentage of your cases are family law/wills and estate cases?
4. Do you know how judges in my venue typically decide the issues involved in my case?
5. Can you arbitrate this case within the next few days/weeks/months, etc.?
6. What is your hourly rate?
7. Do you require a retainer, and if so, how much?
8. How long will my arbitration process take?
9. Are you qualified to act in a Med/Arb - start in a mediation capacity and switch to arbitration if we cannot come to an agreement?
10. How many mediation/arbitrations have you handled?

What Rights Do I Have In Arbitration?
You have the right to an impartial Arbitrator. The rules of natural justice apply – the right to adequate notice and to a fair hearing.

When Is Arbitration The Right Choice?
Considerations and questions to ask to determine if arbitration is right for you:

1. What is the backlog of cases in the local court? How long will it take for your matter to be placed on the trial list? When are the next dates for a trial? What is the “usual” length of time between a judge hearing the trial of a case and rendering a decision?

Many courts have tremendous backlogs and cases are not being heard by a judge for years, although in many court houses, family matters involving children do get some priority. If you need or want your case resolved quickly, then arbitration may be the solution.

2. Are there issues in your specific case that need to be kept confidential?
Family and wills and estates matters tried in court are part of the public record and often decisions made in a family or wills and estate matter are made public (on the court’s website). On the other hand, arbitration can be kept entirely confidential.

3. Does your schedule limit your availability? Would scheduling specific times and dates to address your matter work best for you?
Since arbitration involves hiring an Arbitrator, the entire arbitration process is scheduled on dates and times that are convenient for your personal and work schedule. On the other hand, in-court litigation is scheduled on the court’s time, where your personal and work schedule is of little to no concern.

 4. Can my spouse and I decide to submit limited issues for the Arbitrator to decide or do we have to turn over the decision-making authority on all issues in our divorce or estates case?
In arbitration, the parties determine which issues are decided by the Arbitrator by agreement to arbitrate at the beginning of the arbitration. Therefore, if you have resolved all but a few issues you can submit those issues to an Arbitrator for a quick resolution.

 5. Can arbitration start out as mediation?
With a Med/Arb agreement, you can start the process as mediation in hopes of reaching a mutual agreement, but if the parties do resolve their issues in mediation, as long as it is provided for in their med-arb agreement, then the process can move to arbitration and the Arbitrator can make a decision on any matters not resolved during the mediation phase.