Where parties have entered into Minutes of Settlement that were turned into an Order which included an agreement to arbitrate upon a dispute, there is an implied obligation that they must sign an Arbitration Agreement in accordance with the requirements.
The parties in this matter had engaged in a mediation/arbitration process and reached Minutes of Settlement which were then made into a final Order of Justice Shelston. This order outlined that all future disputes between them must be conducted by arbitration, including future spousal support reviews. When a dispute regarding support issues arose, the parties contacted the original mediator/arbitrator and an Arbitration Agreement was drafted. Rather than proceeding through this agreed upon route, the applicant chose to serve a Motion to Change the order on the respondent, opposing the arbitration process on jurisdictional grounds. The respondent brought this motion to seek to enforce the terms of the agreement and direct the applicant to enter into an Arbitration Agreement to deal with the spousal support dispute and in turn, stay the applicant’s proceeding. The real issue before the court was whether the order of Justice Shelston was enforceable and if so, then the parties must comply with that Order, which includes signing the Arbitration Agreement.
There is a distinction in case law between court ordered arbitration and private agreements to arbitrate. A court has jurisdiction to make a consent order for arbitration as a future dispute resolution mechanism and that order is enforceable. Although the court understands that a dispute resolution clause is not necessarily a valid Arbitration Agreement, where the parties have a common intent to resolve future disputes through the mediation/arbitration process, the parties will be obligated to take steps to do so by way of Arbitration Agreement. In addition, both parties conducted themselves in a manner that was consistent with the provision requiring the dispute resolution by arbitration which further demonstrated their intention to be bound by this provision.
The Arbitration Act, states that a court shall not intervene in matters governed by the Act except for certain circumstances. None of which include circumstances related to the matter at hand. The Judge ordered that the applicant was compelled to sign the Arbitration Agreement and proceed with the Arbitration process per the Order of Justice Shelston.
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