See note 46
The conciliation or mediation of family disputes leaves decision making in the hands of the parties. If they cannot resolve the issues, an independent arbiter must determine their respective rights and obligations. Traditionally, this function has been discharged by courts.
The use of binding arbitration has recently emerged in Canada as a viable alternative to contested litigation as a means of resolving spousal disputes
respecting property division, support, and child custody and access on marriage breakdown or divorce. During the last fifteen years, Canadian lawyers have made increasing use of arbitration clauses in drafting separation agreements and minutes of settlement.
Private arbitration has the following potential advantages over litigation as a dispute resolution process.
The parties are directly involved in the appointment of the arbitrator(s). An arbitrator can be selected having regard to the nature of the dispute and the arbitrator’s qualifications and expertise. A lawyer or accountant might be appointed to resolve a complex financial dispute whereas a psychiatrist or psychologist might be preferred when the dispute focuses on the custody, care, and upbringing of children. More than one arbitrator can be appointed if the parties wish to take advantage of several fields of expertise.
In litigation, the parties have little or no choice. Once proceedings have been instituted in a particular court, the issues will be adjudicated by one of the judges assigned to that court. The parties are not free to select a particular judge. Furthermore, if proceedings are instituted in a court of superior jurisdiction, the judge is not usually a specialist in family law and may have no interest in, or even an aversion to, adjudicating spousal or parental disputes.
Litigants are often intimidated by the formality and adversarial atmosphere of the court. An arbitration hearing can be as formal or informal as the parties desire. The arbitration process can be tailored to the needs of the parties and the circumstances of the particular case. The parties may favour an adversarial type of proceeding in which pleadings and affidavits are filed, witnesses are examined and cross-examined, and the rules of evidence are strictly observed. Alternatively, they may prefer an informal approach by way of a round-table conference. The role of the arbitrator can be specifically defined by the parties. In custody and access disputes, if the arbitrator is a psychiatrist or psychologist, he or she may be given authority to act as a fact-finder as well as the decision maker. The fact-finding may include authorized access to school records and personnel and to doctors and medical records. It may also involve interviewing members of the immediate or extended family
and other persons who may be involved in future arrangements for the care and upbringing of the children. Psychological tests might also be appropriate.
Litigation, at least in courts of superior jurisdiction, necessitates formal pleadings, production of documents, and discoveries. Interlocutory motions are often brought pending a trial of the issues. The parties, their counsel, and any witnesses must accommodate the demands or convenience of the court. There is no guarantee when the case will be heard and time is often wasted in waiting to be reached on the court list. Procedural requirements imposed by provincial Rules of Court must be observed and the judge must have regard to previous decisions in matters of substantive law. It is not difficult for experienced counsel to invoke established procedures to delay a resolution of the issues.
In contrast, arbitration does not normally require formal pleadings, productions, and discoveries. Interlocutory motions are usually unnecessary and the issues can be resolved without delay. The extent to which formal procedural rules shall govern is determined by the parties themselves. The parties and the arbitrator can negotiate a suitable time and location for any hearing: long summer vacations, weekends, and evenings are not precluded, as they would be in the judicial process. The arbitrator has only one case to resolve and can give it undivided attention. Hearings and adjournments can be scheduled to accommodate the parties. Even complex issues can usually be resolved by arbitration within a few weeks. Contested litigation rarely takes less than eighteen months and may take several years, particularly if appeals are taken.
Parties specifically define the limits of the arbitrator’s decision-making power. It can be as broad or as narrow as the parties determine. The jurisdiction and powers of the arbitrator are fixed by the agreement of the parties and cannot be exceeded. An arbitrator may be required to make decisions not only about the present but also the future. For example, an arbitrator may be asked to determine what spousal or child support shall be payable before and after retirement. In contrast, litigants cannot fetter the statute-based discretionary jurisdiction of a court respecting spousal or child support, custody, and access. In addition, courts look to the present and not the future; they cannot, or will not, decide issues that depend on future contingencies.
Even when the arbitration process selected by the parties has a formal and adversarial character, the hearing is conducted in private. Only the parties, their counsel, and witnesses attend the hearing before the arbitrator. Courts of law are generally open to the public and the press, with the consequential risk of embarrassing publicity.
Whereas judges and courts are provided at the taxpayer’s expense, arbitrators in family disputes are paid for their services by the...