Dispute Resolution Options: Arbitration

Dispute Resolution Options: Arbitration, Is It Right For You?

Arbitration has many benefits including affordability, confidentiality and efficiency.

In the simplest of terms, divorce arbitration is one type of dispute resolution wherein each party tells their side of the dispute. An impartial, third-party arbitrator then determines a legally-binding decision. It’s important to note that arbitration is only available if both parties agree to the process. As such, if one spouse refuses arbitration there will be no choice but to litigate.

What Does The Arbitration Process Look Like?

Arbitration is a process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial, neutral third party. A hearing is conducted and a binding decision is rendered. The Arbitrator has an obligation to be impartial, to consider the evidence and render a binding written decision in accordance with the Arbitration Agreement, the principles of natural justice and the Arbitration Act. As your lawyer, my role in the arbitration will depend on the level of formality selected for the arbitration but generally involves my preparing for the questioning and cross examination of witnesses, legal research, the preparation of any Affidavits and written legal briefs, preparing and delivering an opening statement and closing argument.

How Formal vs. Informal Is Arbitration?

The level of formality of an arbitration hearing depends on what the parties can agree upon. Failing an agreement, it would be a formal process, similar to a courthouse except that its location would be in a private boardroom. The formal procedure would involve witnesses providing evidence under oath/affirmation through questioning by their own legal counsel and opposing counsel. An arbitration can also be informal. This generally means that evidence is provided in a written document called an Affidavit. Affidavits would be exchanged and then there would be an opportunity to respond to the other party’s Affidavit and those documents would also be exchanged. Thereafter, there would be a written brief outlining our position and legal arguments.

Why Choose Arbitration as an Option For Dispute Resolution?

  1. Efficiency - 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 six months from the date we decide to proceed to trail.
  2. Affordability - since arbitration provides a more streamlined process than a court trial and since lawyers are paid by the hour, arbitration can be far less expensive than a litigated resolution.
  3. Confidential - unless there is an appeal, arbitration sessions are private, as are the communications, documentation and notes made in the course of arbitration. Litigation involves public court appearances, documentation and evidence all of which is a matter of public record is accessible by anyone.
  4. Flexible - arbitrators will work with parties to accommodate work and vacation schedules. Although timelines and decisions can be imposed there are not as rigid as those imposed by Court. Litigation, court appearances and the Rules of Court are not at all flexible.
  5. Stress - arbitration takes place in a private boardroom. Providing testimony in that setting is far less stressful and intimidating than testifying in an open court room.

If you are interested in learning more about mediation or arbitration, connect with us to set up an initial consultation.

Here's What NOT To Do During A Divorce

The 5 Worst Things You Can Do To Your Children During Divorce

Let children be children. Don't expose them to legal battles.

If you are going through a separation or divorce it's likely you want to protect your children as much as possible from any negative impact. Our mediators are well versed in the impact that divorce can have on children. That is why they have put together this list of the worst things you can do to your children during this stressful time. Use this list is a reference when you need to reflect on your actions to ensure your doing what's best for your kids. Read on to discover the worst things you can do to your children during divorce.

Expose Them To Conflict

The #1 indication of how children will fare into adulthood is not whether their parents are together, separated or divorced but if they are exposed to conflict. Protect your children from conflict by:

Put Them In The Middle

Avoid using the children to relay plans/information/requested changes to the schedule/support cheques, as this puts them directly in between their parents and directly in the middle of the tension. However, even when parents are cooperative, it is best to let children be children and not have them feel that they need to facilitate the co-parenting relationship

Try To Turn Them Against The Other Parent

Avoid making negative comments about the other parent to or in front of the child (and ensure others do not either). Remember, behaviour counts! Avoid negative body language as well. Even if you do not say anything negative, a sigh, cringe, tensing up or becoming teary is just as powerful a message about how you feel about the other parent. Doing this leads to the child being in a loyalty bind. The child loves and identifies with both parents and if you say something negative about one parent, you are saying something negative about the child by extension. Or, at best, confusing the child (how can I love the person you hate when I love you too). It's natural for anyone to get defensive when something negative is said about a family member, even if the person frequently complains about the family member themselves. Those feelings are even more pronounced when the two people that a child loves most in the world are making those negative comments about one another.

Interfere With The Other Parent's Time

A child needs time with both parents, just as much as he/she needs love and affection from both parents. Give them the gift of that time. Avoid interfering in that time by cancelling parenting time, unnecessarily limiting time, frequently being late/early. Also avoid constantly emailing or phoning the child when they are with the other parent. Of course, there can be contact while a child is away but you should try to minimize the amount that conflict disrupts or interfere with the child's time with the other parent. Perhaps have the child initiate contact or talk with the other parent about what timing for contact would work best in his/her home.

Grill The Children Before And After Parenting Time

It's great for children to feel able to talk to a parent about their time at the other parent's home, as otherwise they can feel that their lives are disjointed and compartmentalized, but there is a fine line between asking about their day/week/weekend and their feeling grilled. Avoid fishing for details about exactly what they did, how much screen time they had, who was there for how long, what they ate, how late they stayed up, etc. A child wants to please and protect both parents so he/she may be trying to say what he/she thinks one parent wants to hear or may become uncomfortable with questions and try to protect the other parent if he/she thinks the answers could lead to conflict.

If you are considering separation and are interested in dispute resolution matters to resolve your legal issues, connect with us! Our teams knows the law and can help you achieve your goals outside of court.

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