Family Law Arbitration Update

As mediation flourishes, arbitration remains stuck in the ADR toolkit

Family Law Arbitration Update

The 2013 BC Family Law Act (“FLA”) entrenched the use of mediation and arbitration in family law disputes. Over the last four years, mediation has flourished while arbitration remains a rarity. 

Family law arbitration offers a number of advantages:

Speed – The process can be started and resolved quickly. The procedures can be streamlined to reduce waste and repetition.

Efficiency – Although the parties have to pay for the arbitration, it is often more efficient than the court process.

Confidentiality – With few exceptions, arbitration takes place in private and remains private.

Finality – The arbitrator’s decision is final and binding. The right of appeal is limited and appeals are rare.

Despite the clear advantages, many lawyers and clients are wary of the process.

A primary reason is that arbitration is new to family law conflicts. Mediation has been commonplace for the last 25 years. The efficacy of mediation is better known and more widely accepted. 

Unlike judges, there is no shortage of arbitrators. Since 2013, approximately 100 lawyers in BC have qualified as family law arbitrators. In a 2016 random sample survey of qualified family arbitrators, conducted by Victoria Mediation Services (“VMS”), less than 23% of the lawyers surveyed had actually conducted any arbitrations. Of that number, most were senior counsel or were retired from the Bench.

The VMS survey identified the most common obstacles to increasing arbitration are cost and the perceived uncertainty of outcome. 

Cost is also a barrier in mediation. However, the costs of the alternative dispute resolution (“ADR”) options is offset against the savings in time, stress, and uncertainty of the court process. 

Arbitration, especially when used in conjunction with mediation (Med/Arb), offers significant cost saving opportunities. The parties can steamline the process. Court dates are harder to set and have a high risk of being bumped. Waiting for trial time can take many months, while an arbitration can be set quickly.

Unlike mediation, arbitration offers finality. The courts have given arbitrators significant deference in making their awards. However, in surveying family law practitioners, VMS found that many lawyers were concerned that an arbitrator’s decision could be easily overturned. 

In explaining this deference, Judge Punnet states: “the FLA and its regulations set out specific requirements or expertise for arbitrators on family law arbitrations. This invites a greater degree of deference” McMillan v. McMillan, 2015 BCSC 2177 (para 39).

Unlike commercial arbitration, family law arbitration can be appealed on a question of mixed facts and law, (Arbitration Act s. 31 (3.1)). Justice Punnett continues:

“[44] A review on a question of mixed fact and law does not permit review of the arbitrator’s factual findings. Rather it permits a review of mixed fact and law on the standard of reasonableness, not correctness.

[54] it is not open to the court to substitute its own findings of fact for those of the arbitrator....”

Summary

Family arbitration is an underutilized part of the ADR toolkit. It can provide speedy, just and cost-effective resolution to a myriad of family law disputes. It can be tailored to the specific needs of the family. Costs and stress associated with delay can be eliminated. Qualified arbitrators are available and making use of them can improve the process of separation for many. 

Practice tips:

  • Use arbitration to address interim issues such as support and disclosure. Addressing these issues early can facilitate goodwill and improve mediation outcomes. 
  • Use arbitration for child or spousal support variations. These can be set as short hearings or document-only arbitrations.
  • Review the rules for fast track arbitration as this can dramatically reduce costs and lead to a speedy resolution.

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