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Last week, I posted Part 1 of Family Law Settlements and the Process known as “Mediation/Arbitration”. The following is Part 2.
The process known as Mediation/Arbitration is not new to Canada and family law, but it is not well known, or used in B.C. The process known as Arbitration is not new. It has been around for years in such areas as labor law. Arbitration is not widespread in family law; certainly not in the Okanagan. Generally, Arbitration is a process in which a hearing is conducted involving the couple, their lawyers and the Arbitrator. The objective is to obtain a final and binding settlement, called an “Award”. The Award is the decision regarding the family law dispute (More on the Arbitration process in a future Blog.)
The changes to family law, which come into effect on March 18, 2013 with the new Family Law Act, its Regulations as well as the Arbitration Act, will allow for the use of various combinations of Arbitration for the resolution of a family law dispute.
Generally, and very briefly, “Mediation/Arbitration” works like this:
- A Mediation/Arbitration Agreement is signed;
- A date for Mediation is set in the usual manner and the couple, together with their lawyers attend and participate in the mediation to work towards a resolution;
- If the Mediation settles the family law dispute, great. A Separation Agreement is prepared and signed and the matter is complete;
- However, if the family law dispute is not settled at the Mediation, then arrangements are made for a Pre-Arbitration meeting to discuss the ways in which to streamline and expedite the Arbitration;
- A date for Arbitration is set. This date can usually be set very quickly as the only schedules to be considered are those of the clients, their lawyers and the Arbitrator;
- It is also possible to arrange a date for an interim application before the Arbitrator to make a decision on matters that may need to be decided upon prior to the full Arbitration or even prior to the trial date if the matter has been set for trial.
The Mediation/Arbitration process is a very interesting combination of working towards a resolution on an interest based perspective with the same person who would be eventually determining to final result, assuming the Mediation stage of the process is not successful in resolving all outstanding issues. If there is a ‘fault’ with Mediation, it might be that there is nothing to ensure there is a final resolution. The Mediation/Arbitration may be the remedy?!
Stay tuned for the next Blog discussion on “Mediation/Arbitration and the once known process of the Judicial Settlement Conference.
