Alternatives to Court: Arbitration.

• Author: Boyd, John-Paul
• Position: Columns

In our first column in this series, I introduced the basic alternatives to resolving family law disputes in court--negotiation, mediation and arbitration--and talked about some of the surprising research on lawyers' views about litigation. In the second column, Sarah Dargatz wrote about collaborative negotiation, a cooperative kind of negotiation in which the lawyers and their clients work together to reach a settlement resolving a dispute. In this column, I'm going to talk about arbitration.

Arbitration and litigation

Arbitration looks a lot like litigation at first glance. Whether you're going to court or using arbitration, a neutral third-party--a judge in litigation and an arbitrator in arbitration--makes a final decision that binds the parties involved in the family law dispute. Both processes are adversarial, meaning that the parties are not expected to cooperate with each other or reach a settlement. Both processes follow the principles of fundamental justice, which is a fancy way of saying that they are designed to be fair to both parties and that both parties have the right to make their case, and reply to the case against them. But that's where the similarities end.

Litigation is a public process. Hearings and trials happen in an open courtroom, and in many provinces and territories, anyone walking in off the street can review court files. Judges' decisions can be found online, although some jurisdictions try to anonymize the names of the parties.

Each dispute is resolved by applying a blend of statute law and case law, and according to the rules of court. Hearings and trials are scheduled when there's room in the court calendar, which might be several months for hearings and several years for trials. The evidence presented must comply with the statute and common law rules of evidence. The judges who deal with hearings and trials are randomly selected and may or may not be experts in family law.

Arbitration, on the other hand, is a private process. Hearings occur behind closed doors, no one has access to the arbitrator's files and the parties agree to keep everything that happens confidential. Arbitrators distribute their decisions to the parties only and never post them online.

Disputes may be resolved by applying the law or by applying another standard, like fairness, and the parties pick the rules for themselves. Hearings can be scheduled as soon as the arbitrator and everyone else is available. The rules and legislation about evidence do not govern arbitrations. The witness' oath or affirmation is not necessary and evidence will usually be allowed if the information is relevant to an issue in the dispute.

Best of all, in arbitration the parties can choose their arbitrator, which means that they can pick someone who isn't just an expert in family law but is an expert in the specific family law problem that's at the heart of their dispute.

Starting arbitration

It's easy to get into arbitration. First, you need to talk to...