Reappraising the Use of Arbitration in Family Law Disputes

Recent research comparing family law dispute resolution processes from the Canadian Research Institute for Law and the Family and the Canadian Forum on Civil Justice provides fascinating insights on the views and attitudes of lawyers in Nova Scotia, Ontario, Alberta and British Columbia. The report, described in an earlier article by Jean-Paul Bevilacqua, concludes that while family law lawyers view litigation as useful for high-conflict disputes and cases involving risks to persons and property, litigation is not their preferred resolution process. The lawyers surveyed said that mediation, collaborative negotiation and arbitration are more likely to produce results that are in the client’s interest and in the interest of the client’s children than litigation, at a lower cost and in half the time.

Although respondents to the Institute’s survey viewed arbitration more favourably than litigation, the results of the study show a clear distinction between family law lawyers’ views of adversarial processes and non-adversarial processes. While arbitration is preferred to litigation in terms of cost, time and suitability of outcome, respondents’ overall opinions of arbitration are closer to their views of litigation than they are to their views of mediation and collaborative negotiation. Here are some of the Institute’s key findings on this point comparing the four dispute resolution processes studied in chart form:

These results may reflect a lack of familiarity with arbitration processes and procedural options, as less than one-third of respondents said that they use arbitration in their practice – compared to the 80.1% of respondents who said they use mediation, the 62.7% who said they use collaborative negotiation and the 68.7% who said they use litigation – and as only 8.5% of respondents said that they frequently use arbitration to resolve family law disputes. It’s worth remembering, however, that although arbitration is an adversarial process, it has a number of distinct advantages over traditional court processes which suggest that it should probably be used more often where family law disputes cannot be resolved other than by application to an independent decision-maker. Arbitration is more than simply litigation-lite.

Choice of decision-maker

Arguably, the most important distinguishing characteristic of arbitration is the ability to choose the arbitrator. Rather than leaving things to the luck of the draw, parties can choose a lawyer viewed as an expert in the specific subject matter of their dispute as their decision-maker. Have a complicated tax problem, or difficulties dividing a closely-held corporation? Use a family law lawyer known for her understanding and experience with financial disputes. Can’t agree on how the quantum of spousal support should be determined? Choose a family law lawyer who understands the intricacies of calculations under the Spousal Support Advisory Guidelines. Have a difficult parenting problem or a mobility dispute that seems too close to call? Choose a family law lawyer known for her child-centred and interdisciplinary approach to such matters.

Choice of process

The decision to litigate locks the parties into the processes prescribed by the Rules of Court and a lockstep march through interim applications, disclosure and discovery, case conferences and trial. While some judges, particularly those in the family division of the Ontario Court of Justice, may apply the rules in a manner that is meaningfully proportionate to the complexity and importance of the matters at issue in a case, such latitude is not often extended.

Although arbitration processes are also governed by prescribed rules, these rules are optional. The parties to an arbitration proceeding can choose the process that is best for their dispute, their circumstances and the width of their pocketbooks. While the standard rules look, smell and feel just like the Rules of Court, the parties could, for example, agree to simpler, faster, cheaper and less cumbersome alternatives:

1. Arbitration on a point of law, with an agreed statement of relevant facts, written arguments and books of authority, but without written or oral evidence.

2. Arbitration without oral evidence, relying on affidavits, expert reports, admissions and agreed statements of fact.

3. Arbitration with all evidence in direct provided through affidavit, with limited rights of oral cross-examination and other evidence provided by joint expert reports, admissions and answers to interrogatories.

4. Arbitration on oral evidence, as well as expert reports, admissions and answers to interrogatories, but with limits restricting the number of witnesses available to each party, the amount of time for their evidence in direct, the amount of time for their cross-examination and the amount of time for opening and closing submissions.

Providing the rules of natural justice are observed, the potential range of modifications and abbreviations of traditional processes available to tailor the conduct of an arbitration proceeding to the circumstances and needs of the parties to a dispute are seemingly endless. Even the rules of evidence can be abridged, with the consent of the parties. They might, for example, agree to dispense with the best evidence rule, accept written documents for the truth of their contents or allow hearsay from identified sources.

Privacy of process

Arbitration occurs in a private setting, usually a boardroom of some kind, and pleadings, affidavits and other documents are usually protected from distribution beyond the parties, their counsel and their arbitrator. Likewise, arbitral awards are never made available to for public browsing or published on CanLII.

Parties in the public eye and those dealing with sensitive issues will appreciate the privacy arbitration offers, not to mention avoiding the risk of a Grade Ten law and society class trooping through in the midst of an embarrassing cross-examination.

Speed of process

The delays plaguing some Canadian courts are legendary. In some courts, it can take six to eight months simply to get in front of a judge for a half-day contested chambers application, and the time to get to a short one-week trial is always far worse. I recognize that the problem usually revolves around judicial complements that are incomplete or have failed to keep pace with population growth, but a hearing in an arbitration proceeding can be scheduled as soon as there’s a coincident opening in the calendars of all involved.

As it happens, respondents to the Institute’s survey tend to agree that arbitration is fast and efficient, especially when compared to litigation:

Deciding to litigate or arbitrate

I would encourage counsel and claimant alike to consider arbitration when a dispute seems doomed to litigation. Given the advantages offered by arbitration, it seems to me that one would need to point to an absence of qualified arbitrators, the presence of a legislative scheme that discourages arbitration or the existence of exigent circumstances susceptible to adequate redress only by the court to justify the expensive and time-consuming choice to litigate. Here are two more findings from the Institute’s study to illustrate the point:

The report, An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods, is available on the Institute’s website and the website of the Canadian Forum on Civil Justice.

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