A Better Alternative to Family Law Rules of Arbitration

I spent a fair amount time in early 2018 drafting a set of rules for the arbitration of family law cases. This was motivated, firstly, by provisions of British Columbia’s Arbitration Act that require the use of certain commercial arbitration rules unless the parties agree otherwise, and, secondly, by the benefit of creating rules specifically tailored for family law disputes. Although the rules I drafted are written in plain language and cover hearing from children, mandatory minimum levels of financial disclosure and parenting assessments, I’ve become less and less fond of them as time has passed. They’re too long, too complicated, and look and feel too much like the rules of court, and I worried no one would read them as a result.

This led me to develop a sort of pick-list describing all of the procedural alternatives and allowing parties to design the process for their arbitration by ticking check-boxes. I thought that I could later develop a document-assembly program, similar to those used by commercial lawyers drafting contracts, that would assemble a custom rule set by linking each check-box to ready-made clauses.

While the idea of the pick-list was a good one, as was the idea of creating custom-built rule sets case-by-case, my dissatisfaction with formal rules of arbitration for family law disputes has continued to fester. However, I’ve recently had a bit of an epiphany that might go some way toward cracking the nut.

The benefits of rules are obvious. They apply equally to each party, they impose a fairly rigid structure on the process of getting from the beginning to the end of an arbitration, they create shared expectations, they provide timelines and they spell out the consequences for breaches and other misbehaviour. In family law matters in particular, rules can:

1. provide a range of procedural options that are genuinely proportionate to the circumstances of the parties and the importance, complexity and value of the questions in dispute;

2. promote cooperation and discourage conflict by requiring the preparation of statements of agreed facts and joint books of documents, and reduce cost by requiring that all experts be jointly retained and jointly instructed;

3. address how the children will be heard from, which might take the form of an interview with the arbitrator, an evaluative or non-evaluative views of the child report, or an expert’s parenting assessment;

4. require transparency, fix the minimum scope of obligatory financial disclosure and set the consequences for failing to make disclosure;

5. provide intuitive, plain-language pleadings and financial statements that can be completed by parties without counsel and that minimize the opportunity for adversarial narrative statements;

6. encourage the parties to engage settlement discussions at each stage of the process and require the exchange of formal offers to settle prior to the hearing; and,

7. promote good behaviour, the adoption of a child-centred perspective and impose costs and other consequences for poor behaviour.

Unfortunately, the development and memorization of rules tailored to the specific circumstances of the family and their dispute require significant time and effort. As a result, many counsel, when asked about the rules they wish to apply, simply reply “the rules of court.”

This is to be much regretted, as the key point of arbitration is that arbitration is not litigation. The parties have made the explicit choice to have their dispute resolved through a process that is faster, cheaper and more flexible than that offered by the courts, and adopting the rules of court by reflex robs the parties of many of these benefits. I get why some arbitrators and so many lawyers are comfortable adopting the rules of court – anyone who litigates knows them backwards and forwards – but doing so does, in my respectful opinion, a disservice to the parties and undermines if not eliminates many of the advantages offered by arbitration.

Another distinction between arbitration and litigation, however, is that arbitrators can and should take an active role in the management of cases from the outset. The arbitrator’s job, as I see it, includes pushing counsel to eliminate unnecessary discovery processes, reconsider inefficient evidentiary processes and sharpen their arguments to the fundamentals. This includes questioning the necessity of in-person hearings, exploring alternatives to the oral presentation of evidence, developing witness statements and agreed facts at the beginning of the case rather than the end, restricting and managing the appointment of experts, and generally being willing to think outside the litigation box.

In my view, adopting a set of formal rules, even a provincially- or nationally-promulgated set of family law arbitration rules, risks losing the careful case-by-case consideration of process and procedure that is one of the more valuable hallmarks of arbitration. What I think we need instead is a more developed understanding of the unique role arbitrators play in family law cases, their case management function in particular, and of the importance of turning the minds of counsel and parties to the consideration of process at the outset of the file. It will be necessary to press counsel less familiar with arbitration to let go of their instinctive preference for the rules of court, but the result is far more likely to deliver on arbitration’s promise.

I have, then, decided to abandon the rules I developed in favour of a less formal approach. Immediately after first contact, I send out a copy of my pick-list in PDF format and urge counsel to begin discussing the procedural options it describes with their clients. At the initial conference, I use the pick-list, and a great deal of cajolery, to develop a common understanding of the processes that will be available and those that will not, including the timing of the early delivery of witness statements, the timing for the agreed disclosure, the procedure for interim applications, the procedures that will be used at the hearing and, of course, the requisite list of timelines and deadlines. Following the conference, I prepare a memorandum detailing the decisions made, on which I invite counsel to comment.

This memorandum is critical. It is the roadmap for the arbitration and provides a comprehensive description of the process agreed to be used. It is not without flexibility and can be abridged or adapted when necessary to accommodate the unexpected and unforeseen. The procedures described in the memorandum do, however, apply equally to each party, impose a structure on the process of getting from the beginning to the end of the arbitration, create shared expectations, provide timelines and spell out the consequences for noncompliance and other misbehaviour.

The other piece of the puzzle is my arbitration participation agreement, which itemizes the issues to be resolved and discusses:

1. the duties of the parties, including the duty to participate in good faith, the duty to respond promptly to communications, the duty to put the interests of the children first and foremost and the duty to make the required disclosure;

2. the parties’ waiver of their rights to further litigate the issues to be resolved;

3. the confidentiality of the arbitration process and of the documents exchanged in that process;

4. the resolution of the dispute by law, and if so which law, or ex aequo et bono; and,

5. the parties’ rights of appeal and any limitations on those rights.

Together, three things, (a) the domestic Arbitration Act, (b) the memorandum I issue following the initial conference and (c) my participation agreement, fulfil all of the functions that would normally be provided by a rule set. They ensure that the parties’ expectations of a process that is faster, cheaper and more flexible than that offered by the courts are met, they discourage the adoption of the rules of court by default, and they avoid the creation of a cumbersome, lengthy book of rules as an alternative to the rules of court.

I’m sad to lose the family law rules I prepared, largely because of the amount of time it took to prepare them. However, I am convinced that this is the better approach. It encourages creativity in the design of an arbitration proceeding and is far more likely to result in the development of processes that are truly proportionate to the circumstances of the family and the importance, value and complexity of the issues in dispute, and it does so in a way that is both efficient and minimally time-consuming.

For those who are curious, the rules I drafted and the pick-list are available on the “Rules of Procedure” page of my website, and my participation agreements are available on the aptly-named “Participation Agreements” page. All may be copied, reused and adapted without the necessity of my permission.

Comments

  1. Arlene H. Henry, QC

    Now you are talking!! Seldom is it ever the first prototype that really hits the mark.
    Keep pushing us outside of our comfort zone of thinking — the fear & challenge we face as practitioners in fully and firmly embracing a new approach to resolving family law disputes, while also letting go of the strictures that feel both safe and comfortable, feels at best like free falling.

  2. It does feel that way, for sure, but at the same time the incredible potential of family law arbitration, of which I think we’ve really only scratched the surface, is very, very exciting.

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