Arbitration: the 5 W's

The Five W's

What is Arbitration?

Arbitration is essentially a private alternative to the court system. It’s a way of resolving conflict, and obtaining a decision on any type of dispute. It involves parties in a dispute agree to be bound by the decision of an independent third party (the arbitrator). The arbitrator renders a decision on the matters in issue based on the evidence and arguments presented. Arbitration is akin to a court trial and an arbitrated decision takes the place of a justice’s decision at trial.

Parties can jointly agree to an informal arbitration process, however, barring agreement the process involves opening statements, the testimony of the parties and possibly of third party witnesses and closing argument. The arbitration hearing takes place in a private boardroom. Parties can either represent themselves or be represented by legal counsel.

Who Can Choose Arbitration?

Arbitration is appropriate for anyone in conflict, regardless of the issues in dispute and the level of conflict. We regularly work with parties to resolve issues such as custody, parenting, support, division of assets and liabilities. High conflict couples can also attend arbitration but particular safeguards need to be in place for parties with a history of domestic violence so the arbitrator should be advised of that history in advance.

Where Does an Arbitration Take Place?

An arbitration hearing takes place in a private boardroom setting, usually at the office of the arbitrator. Parties can either represent themselves or be represented by legal counsel. Parties agree to the level of formality of the arbitration hearing so it can either be quite informal or as formal as a court trial.

When Should you Attend Arbitration?

Arbitration can begin as soon as a dispute arises. Simply contact the opposing party to a dispute to obtain his/her consent to use arbitration and agree upon an arbitrator. Then schedule an initial appointment with the agreed upon arbitrator. People in the midst of litigation can also opt to attend arbitration to resolve their dispute instead of continuing to litigate.

Why Choose Arbitration?

The advantages of arbitration over a court trial include the following:

  1. Efficient – There are numerous steps that must be taken prior to scheduling a court trial and, therefore, Court of Queen’s Bench trials are typically scheduled well over a year following legal counsel being retained. Arbitration is a more streamlined process that can be scheduled quickly, thereby allowing parties to resolve their dispute in a timely manner.
  2. Affordable – Since an arbitration provides a more streamlined process than a court trial and is more conducive to parties acting on their own behalf without lawyers, arbitration tends to be far less expensive than court trials.
  3. Family Law Experience – The parties agree upon whom to hire as their arbitrator. As such, they have the ability to retain an arbitrator that has extensive experience in family law. By doing so, the parties can have confidence that their dispute will be resolved thoroughly, competently and accurately in accordance with legislation and current legal trends in the judge-made common law. Hiring arbitrators that are not lawyers or that do not have experience practicing in the area of family law can result in inaccurate applications of the law and incorrect arbitration awards. Additionally, justices of the court have a wide range of backgrounds and parties may or may not appear before a justice that has any experience practicing family law before joining the judiciary.
  4. Consistency – During traditional litigation parties attend court a number of times and are always in front of whatever justice happens to be sitting that day. As a result, parties appear before a variety of justices throughout the course of their litigation. Additionally, many interim applications involve justices making decisions in very short periods of time with no prior knowledge of the family circumstances. Lawyers spend time providing the court with background information at each appearance. While arbitration may also involve interim applications, parties always attend the same professional so the arbitrator becomes intimately familiar with the parties, their family circumstances, and the details of their property.
  5. Simple - The procedure is less complicated than litigation, which can be extremely challenging for self-represented litigants to navigate. Individuals can easily attend arbitration on their own, but are also free to have legal counsel represent them should they prefer.
  6. Confidential – Arbitration sessions are private, as are the communications, documentation and notes made in the course of arbitration. Litigation involves public court appearances and the documentation and evidence submitted are a matter of public record, accessible by anyone.
  7. Flexible – Arbitrators will work with the parties to accommodate work and vacation schedules. Although timelines and decisions can be imposed, they are done in consideration of the parties’ circumstances and, as such, not as rigid as those imposed by the Rules of Court.

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