I spent a fair amount time in early 2018 drafting a set of rules for the arbitration of family law cases. This was motivated, firstly, by provisions of British Columbia’s Arbitration Act that require the use of certain commercial arbitration rules unless the parties agree otherwise, and, secondly, by the benefit of creating rules specifically tailored for family law disputes. Although the rules I drafted are written in plain language and cover hearing from children, mandatory minimum levels of financial disclosure and parenting assessments, I’ve become less and less fond of them as time has passed. They’re too long, too complicated, and look and feel too much like the rules of court, and I worried no one would read them as a result.
This led me to develop a sort of pick-list describing all of the procedural alternatives and allowing parties to design the process for their arbitration by ticking check-boxes. I thought that I could later develop a document-assembly program, similar to those used by commercial lawyers drafting contracts, that would assemble a custom rule set by linking each check-box to ready-made clauses.
While the idea of the pick-list was a good one, as was the idea of creating custom-built rule sets case-by-case, my dissatisfaction with formal rules of arbitration for family law disputes has continued to fester. However, I’ve recently had a bit of an epiphany that might go some way toward cracking the nut.
The benefits of rules are obvious. They apply equally to each party, they impose a fairly rigid structure on the process of getting from the beginning to the end of an arbitration, they create shared expectations, they provide timelines and they spell out the consequences for breaches and other misbehaviour. In family law matters in particular, rules can:
1. provide a range of procedural options that are genuinely proportionate to the circumstances of the parties and the importance, complexity and value of the questions in dispute;
2. promote cooperation and discourage conflict by requiring the preparation of statements of agreed facts and joint books of documents, and reduce cost by requiring that all experts be jointly retained and jointly instructed;
3. address how the children will be heard from, which might take the form of an interview with the arbitrator, an evaluative or non-evaluative views of the child report, or an expert’s parenting assessment;
4. require transparency, fix the minimum scope of obligatory...