Arbitration utilizes a neutral third party to hear the evidence and decide for the disputing parties how their conflict should be resolved. Arbitration tends to be more structured and formal than mediation, but may be less formal or rigid than the courtroom.
Unlike mediation, arbitration will bring finality to the dispute whether the parties agree or not; an arbitrator’s decision is final and binding and as legally enforceable as a judge’s decision.
You may select an arbitrator who has experience in the field of family law, in crafting parenting plans, and is knowledgeable of local resources. While we have a very capable judiciary in Ontario, judges come from a wide range of legal practice areas. Therefore, it is far from a certainty that a family court trial will be conducted by a judge who practiced family law as a lawyer.
Arbitration is a process where each side tells his or her side of the dispute and the arbitrator makes a decision in the same manner as a judge in a formal trial. As they do in a court trial, each side presents witnesses and documents as evidence to support their facts, and make arguments to support the outcome they are pursuing.
Both sides should speak to lawyers or an arbitrator to find the procedure that works best for them. Usually lawyers for each side (or the parties themselves) and the arbitrator work out details of the procedure to be followed. If they don't, the arbitrator decides the procedure in accordance with Ontario's Arbitration Act, 1991.
The law allows a lot of choice as to the appropriate procedure. However, the procedure must be fair to both sides.
An arbitrator cannot decide anything that people could not have decided for themselves. The arbitrator only has the power given to him or her in the arbitration agreement. An arbitrator cannot allow or order either side to break the law.
• Choose an arbitrator who has professional credentials and experience, either as a family lawyer or as a specialist in dispute resolution, or both. Not all lawyers know about arbitration practice just because they are lawyers.
• Ask a potential arbitrator what his or her credentials are and about his or her experience.
• The arbitrator should be someone both sides trust to be fair, competent and diligent.
• Any family arbitrator should know enough Ontario law (or the law of the other Canadian jurisdiction that is to apply to the dispute) so that he or she can apply it to the issues in dispute. The family arbitrator should also know about arbitration procedures and practices.
• Arbitrators who are not lawyers will be required (as of April 30, 2008) to have some training in Ontario family law. They should also have experience with the arbitration process, and know how to conduct an arbitration and to make reasoned decisions based on the facts and arguments presented to them.
• Family arbitrators must have training in screening parties for domestic violence and power imbalances.
Virginia is able to act as your lawyer in an arbitration and is also trained to provide services as a Family Law Arbitrator.