Section 1 of the Family Arbitration, O.Reg. 134/07 contemplates Med/Arb and defines it as:
“mediation-arbitration agreement” means a family arbitration agreement that provides that,
- a mediation between the parties is to be conducted before any arbitration is conducted, and
- if the mediation fails, the mediator shall arbitrate the dispute and make a binding resolution of it; (“convention de médiation-arbitrage”)
Consequent to this, parties may opt for Med/Arb as their preferred alternative to litigation for dispute resolution. Med/Arb allows parties to engage in mediation initially in order to resolve any disputes stemming from the breakdown of their relationship. This giving the parties the ability to discuss and reach any agreements themselves, relying on the mediator only for guidance and clarification of legal issues.
If mediation proves to be unsuccessful, leaving all or some of the issues to be resolved, then the parties transition from mediation to arbitration vesting ultimate decision-making authority in the arbitrator.
It is recommended that the mediator selected also be a certified arbitrator1.. Selecting a mediator who is qualified to act as an arbitrator would be beneficial as he or she would already be familiar with the parties and their situation.
Once the decision to engage in Med/Arb is made the parties must come together and sign a Med/Arb agreement which will generally contain the following:
- the conditions surrounding the mediation and arbitration,
- the issues that will be mediated and arbitrated,
- the name of the mediator/arbitrator selected,
- the parties agreement to engage in arbitration should mediation be unsuccessful, and
- their waiver of their right to attend court and litigate the issues identified in the agreement.
All the formalities generally associated with arbitration, i.e. the screening for domestic violence and power imbalances, must be conducted prior to the commencement of mediation. This ensures the quick, efficient and compliant transition from one process to the next.
If mediation fails necessitating the transition to arbitration, you should be aware of the fact that the parties benefit from a fresh start. Essentially, anything said or discussed in mediation is wiped out, the mediator (who has now become the arbitrator) does not refer to nor does he or she consider any notes made during the mediation. The parties are given the ability to re-discuss all relevant issues and repeat their claims to an impartial third-party competent to make final and binding decisions.
However, a downfall to this process does exist. Generally, individuals invest themselves, their time and their money in mediation hoping for a resolution. If this resolution doesn’t occur they are then required to incur further costs associated with the arbitration process, i.e. they will be paying for the arbitrator, the presence of their lawyers, each individual arbitration session, etc.
The Med/Arb alternative, despite the above mentioned pitfall, may still be less expensive than engaging in litigation once mediation or arbitration, as individual methods of alternative dispute resolution, break down. Another benefit is the elimination of delays and prolonged wait times that are generally characteristic of court attendances.
When individuals choose Med/Arb they pay a sum of money, set up a mutually acceptable time to meet and discuss and are able to engage in said process in a timely fashion. With litigation, on the other hand, parties and their lawyers can be in court all day waiting to be heard by a judge who is required to push their case aside if other urgent matters present themselves.
Therefore, Med/Arb allows couples to avoid litigation while simultaneously granting them the ability to make decisions regarding their situation in a timely, cost-efficient and informal manner.