Mediation-arbitration is a two-part alternate dispute resolution process that allows the parties to appoint one person to play two roles to help them resolve disputes on a final basis: (1) mediator and (2) arbitrator.
The mediation-arbitration process may unfold quite differently, depending on who you retain as your mediator-arbitrator and the issues which are in dispute.
You need to decide the professional qualifications, skills, and experience you want your mediator-arbitrator to have in order to provide your family with the appropriate process and resolution of issues. I have a legal background. You may prefer that your mediator-arbitrator has mental health or financial background.
In British Columbia, the mediation-arbitration process is regulated by the Arbitration Act, RSBC 1996, c. 55, the Family Law Act, and the Ministry of the Attorney General, all of which impose obligations on mediator-arbitrators about mandatory content of mediation-arbitration contracts, client screening, and their own training.
It is important to have independent legal advice and to be free of undue pressures and influences from the other party because an agreement can be set aside as specified in Section 2.1 (3) of the Arbitration Act which pertains to the Court’s discretion in regard to the arbitration of a “family law dispute”.
- (3) An arbitration agreement respecting a family law dispute, and an award arising from a family law dispute, may be set aside or replaced by the court under the Family Law Act if the court is satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
- (a) A party took improper advantage of the other party's vulnerability, including the other party's ignorance, need or distress;
- (b) A party did not understand the nature or consequences of the agreement;
My Mediation-Arbitration Process
Mandatory Training Required by the Government of British Columbia
I have taken the training which the Government of British Columbia requires all family arbitrators to have. I also attend conferences and courses which deliver up-dated training. Accordingly, I am intimately familiar with the legal requirements which govern family arbitration proceedings, including family mediation-arbitration proceedings.
Before the mediation-arbitration process begins, I will meet with each of you separately for an intake meeting. During the intake meeting, I will ask you for information about yourself, your family, and the issues in dispute. I will also screen you for suitability for mediation-arbitration. Screening is required by law.
Before the mediation-arbitration process begins, you will need to sign a mediation-arbitration contract that defines the issues which are in dispute between you. You may address all of the issues which flow from a separation in a mediation-arbitration process, including parenting issues, child support, spousal support, security for support obligations, issues relating to health and dental coverage for the family, financial disclosure and property issues.
A mediation-arbitration contract is an important legal document that defines many significant issues, including the following.
Mandatory Independent Legal Advice or “ILA”
Before you sign the mediation-arbitration contract, you are required by law to receive independent legal advice.
Your lawyers will need to sign certificates that confirm that you have each received independent legal advice, which is commonly referred to as “ILA”. By law, the certificates must be attached to the mediation-arbitration contract.
You are not obliged to have a lawyer represent you during the mediation-arbitration process. However, you may wish to do so.
After the mediation-arbitration contract has been signed, either party or the mediator may decide that there is no point in continuing discussions in mediation because there is no realistic possibility of a settlement being reached.
Neither party may, however, unilaterally withdraw from the arbitration phase of the process.
The arbitration will proceed unless an agreement is reached, both parties withdraw from the entire process on consent or I terminate the process, which only occurs in highly unusual circumstances.
You may decide to stay in the arbitration process but to retain another ADR professional to act as the arbitrator to provide a fresh outlook on the case and its’ facts.
Role of Lawyers in the Mediation-Arbitration Process
If you have a lawyer, then your lawyer may take on any of the following roles in your mediation-arbitration process:
Your lawyer may represent you in the arbitration phase of the process by preparing your submissions for you, and if an oral hearing takes place, your lawyer may represent you at the hearing.
The first phase of any mediation-arbitration process is the mediation phase. During that phase, I will meet with you, either together or separately, to facilitate your discussions about all of the issues which are in dispute.
I will help you brainstorm about potential resolutions in an effort to bridge your thinking about how issues should ultimately be resolved.
If you agree to a resolution, I will prepare the necessary agreement for you to review and sign after you have the opportunity to receive independent legal advice about the terms.
If you are unable to resolve your disputes through mediated discussions, the outstanding disputes will be arbitrated. During the arbitration phase, my role changes from that of a facilitator, who guides your discussions, to that of a decision-maker. As the arbitrator, it is my responsibility to review the evidence which each of you provides to me, consider it and make a decision about how the specific legal issues should be resolved given the circumstances of your family. This differs from the way a judge in Court would hear and decide a case because, by this point, I will be remarkably familiar with the facts and parties, and our hearing process is not as formal as required of judges.
The arbitration phase of my mediation-arbitration process always takes place on a different day than the mediation phase. I need to take a break in between the two types of sessions.
After the mediation phase of the process has been terminated, you or your lawyers will have the opportunity to participate in a pre-arbitration conference to discuss how, when, and where the arbitration will take place. There are many options available, and I will choose the best alternative for your family.
You will both have the opportunity to provide me with a summary of the facts and evidence that you believe are relevant to the legal outcome you are seeking. I will decide, with input from both of you, how formal the arbitration process should be, and how you should deliver your evidence to me. For example, you may send me a summary of your evidence by email to address issues that are relatively narrow and straight-forward. If the issues are more complicated; however, you will be required to provide me with sworn evidence in the form of more formal statements or, you may be required to present your evidence orally.
You will always have the opportunity to respond to the other party’s evidence within a pre-determined period of time. After I have reviewed and considered the relevant evidence, I will decide and provide you with a written decision, called an “award” or “reasons” which reflects a summary of the evidence, my decision, and the reasons for it. My decision will be delivered within a short time, so you are not kept in limbo for much time after the arbitration hearings.