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.
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FOOTNOTE
1.At Feldstein Family Law Group,
Andrew Feldstein is qualified to act as both a mediator and arbitrator. If you are interested
in Med/Arb do not hesitate to
contact him to obtain further information.