Hello, I’m Nick Slinko of the Feldstein Family Law Group.
I recently started an alternative dispute resolution trilogy amidst the Feldstein Family Law Video Files. Mediation has been explored, and now it’s time to look into the world of Arbitration. In an effort to try and avoid the premise that a sequel is never as good as its predecessor, I am going to take some time to also address a hybrid form of ADR – mediation-arbitration.
Arbitration shares some similarities with mediation, but there are also some significant differences. Like a mediator, an arbitrator is a neutral third-party with specific training who is mutually selected by the parties. However, the role of the arbitrator is quite different than that of the mediator, as arbitration is typically binding on the parties, whereas mediation is non-binding. The parties are giving evidence to the arbitrator and giving him or her the power to make a decision regarding a matter or issue in a manner similar to the way a Judge would. This decision can ultimately be entered into the Court record, if the matter is going through litigation. There is legislation dedicated to this very process, namely the Arbitration Act.
Some litigants prefer arbitration to a traditional trial, as the process is entirely confidential (unlike the public forum of Court), which can be a big advantage depending on the nature of your work and/or lifestyle, and your desire for privacy. You also get to select your own decision-maker, whereas a Judge would be assigned to your case without your knowledge or input. There is also something to be said about the speed and ease of scheduling arbitrations as opposed to Trials before a Judge.
In order to enter into this process, the parties engage in an Arbitration Agreement which outlines the entire process. Like mediation, Arbitration cannot proceed in situations where there is abuse, violence, or a power imbalance between the parties.
I will now move on to the hybrid process, which is calledMediation/Arbitration or “med/arb,” for short. This is referred to as a hybrid although it does include both the separate processes of mediation and arbitration in two separate stages. Again, both parties must select a neutral third-party with special training. First, the mediator/arbitrator attempts to assist and guide the parties in reaching a voluntary agreement through mediation. Second, if the mediation is unsuccessful, or if either party feels it is unproductive, then a switch to the arbitration process can be requested, where the mediator/arbitrator will make the final decision. Ultimately, the mediator/arbitrator is the person with the power to decide that the mediation stage has been exhausted, and arbitration has become necessary.
When deciding if the med/arb process is right for you, there are a number of factors to consider. First, and for many people, the most important, is cost. While med/arb may be less costly than going to trial, it can be frustrating for people to pay for the mediation stage, only to have to pay further fees for arbitration. Also, in order to participate in med/arb, a binding Agreement must be signed, meaning that the parties are then required to participate in the process all the way through. You are therefore stuck with your mediator as your arbitrator, even if you feel part-way through the process that they disagree with your position. However, having your mediator as your arbitrator also enables them to provide some opinions during the mediation process, which can hold more weight and encourage people to settle more quickly.
If you are looking for a mediator, an arbitrator, or a mediator/arbitrator, Andrew Feldstein of our office provides all of these services. If you are planning on getting involved in the alternative dispute resolution process, any of the lawyers at our firm would be happy to assist you in your preparation and drafting. For more information on the med/arb process, give us a call at (905) 581-7222 to set up a consultation.
I’m Nick Slinko and I’ll see you next time when I will be discussing the Collaborative Family Law process.