Mediation / Arbitration

The domestic relationship is at an end. If parties are unable to reach agreement through negotiation between counsel regarding finances and children, then a decision-maker is required. A practical alternative to court is mediation/arbitration (“med/arb”). What is the difference between these processes?

Mediation is negotiation steered by a neutral person. A mediator is unable to compel anybody to agree to anything. Successful mediation results in a settlement, usually embodied in separation agreement. An effective mediator, however, can strongly suggest that if the matter does not settle, a decision-maker (either a judge or an arbitrator) will decide issues in a certain way.

Mediation is available through the courts; that is, parties can start court proceedings and then attempt to negotiate a settlement through court-offered mediation services, which in my experience usually pertains to child-related issues.

Arbitration differs from mediation in that mediation generally has been tried and failed, and now the arbitrator is appointed to make binding determinations, very much like a judge.

Med/Arb can be carried out by the same person – generally a seasoned family law lawyer, or by two different seasoned family law lawyers.

Med/Arb is an excellent process. It has numerous benefits over court: for starters, it is infinitely quicker than court. In some instances, cases languish in the court system for literally years. Motion dates where temporary decisions need to be made are often not available for many months. An “ordinary length” motion is not permitted to exceed 1 hour, and time limits are slavishly adhered to because court time is so precious. There are page limits on affidavits and Exhibits. If a motion exceeds 1 hour (a “long motion”), chances are the wait list to book a long motion date is long.

None of these restrictions apply to arbitration.

In court, conferences - with formal briefs for each step - are the norm. These are expensive. At conferences, judges are limited in terms of what can be ordered. There are generally less conferences in arbitration than in court.

It is rare that the same judge oversees all conferences. Usually, a judge who hears a motion has not presided over a conference. Regardless, you cannot choose your judge. You choose your arbitrator and that person determines every aspect of the proceeding.

Court is also extremely formal, not only in how the judge must be addressed but in the candour with which counsel can address a judge. Court does not lend itself to settlement, at least not at court. Mediation is settlement oriented from the get-go.

Unlike Court where there is no charge, the fees of the mediator/arbitrator are generally split between the parties. Overall, I very much prefer med/arb to court. In my experience, the client ends up paying less overall, but more up front because the anointed date for mediation comes so much quicker than any counterpart in the court system (the closest comparable would be a settlement conference, but that is really a stretch). Med/Arb has made tremendous headway in the last decade and will continue to do so.