Designing Rules of Procedure for the Arbitration of Family Law Disputes

In Canada, the available sets of arbitration rules are designed for corporate-commercial disputes and general civil disputes. None are designed for family law disputes, which is especially problematic in jurisdictions like British Columbia, where the Arbitration Act specifies the rules that will be used absent the parties’ agreement to the contrary. Those rules, by the way, are the domestic rules of the BC International Commercial Arbitration Centre, which are hardly ideal for family law disputes and require hefty payments to the Centre.

As a result, in many jurisdictions lawyers taking a case to arbitration simply adopt the local rules of court. This makes sense, as anyone who litigates will be intimately familiar with those rules, and some jurisdictions, again like British Columbia, have rules of court written just for family law disputes. However, it’s not necessarily the best solution, as adopting the rules of court by default, or by reflex, robs parties of one of the key benefits of arbitration: the ability to shape and customize the arbitration process to suit their needs, their dispute and their finances. Moreover, while most Canadian superior court rules begin with an admonition that the rules are to be interpreted so as to provide the parties with an inexpensive and speedy resolution of their dispute, using a level of process that is proportionate to the complexity and importance of the issues in dispute, precious few actually give substance to the idea. Using the rules of court generally means using all of the rules of court, and that comes with costs and delays that may be avoidable.

As a result, upon returning from the academy to private practice, I’ve taken the opportunity to create a set of rules of arbitration specifically designed for family law disputes. Although I’ve drawn on a number of sets of commercial rules for inspiration, the family law rules of procedure are special for a number of reasons including that they:

1. are child-centred;
2. impose compulsory minimum disclosure requirements when child or spousal support are at issue;
3. include a form of financial statement providing a standard vehicle for parties to break down the details of their income, expenses, assets and liabilities;
4. provide opportunities to hear the voice of children, including through views of the child reports, by interviews with the arbitrator or through psychologists’ parenting assessments;
5. allow for the appointment of children’s counsel; and,
6. require the parents to bear in mind the interests of their children and the effect of conflict on their children at all times during the process.

I even added a set of predesigned procedural options that were intended to save people the burden of making detailed decisions about the process they will use while meaningfully reflecting the proportionality principle found in the rules of court. These options include:

1. oral decisions on a legal issue, given without evidence after oral argument and without an in-person hearing;
2. written decisions given after receiving written evidence and written arguments, without an in-person hearing;
3. written decisions given after receiving written evidence, limited oral evidence and written or oral arguments at an in-person hearing;
4. written decisions given after full oral evidence and oral argument at an in-person hearing; and,
5. a special process, used when one or both parties are not represented by counsel, that takes an inquisitorial approach to evidence and argument at in-person hearings.

However, I’m still not convinced that these rules, as good as I think they are, offer the best approach. They’re lengthy, they look and feel a lot like the rules of court, and I’m worried that neither counsel nor parties are likely to read them.

I’ve thought a lot about how these issues can be addressed while still encouraging people to reflect on how they want their arbitration to run and ensure that they pick the most appropriate and most cost-effective procedural alternatives. The best solution, I think, would be to use technology, such as the existing document-assembly applications that some commercial firms rely on, to allow parties to build their own custom set of rules by filling out an online checkbox form with various procedural options: “The evidence of witnesses will be provided by affidavit,” perhaps, or “Each party will be entitled to present a maximum of 4 witnesses” or “Cross-examination will be limited to 90 minutes.” Clicking on each box would add a particular rule, or variant of a rule, to a set of standard clauses to create wholly individualized set of rules. The standard clauses would include the usual rules providing definitions and discussing the application of the rules, confidentiality, breach of the rules, jurisdiction and so on.

Not having this technology, and not yet wishing to spend the money to acquire it, I’ve implemented an alternative that’s inspired by the pick lists some courts are developing to speed the preparation of orders by court clerks. The list breaks down all of the procedural options available, and addresses matters including: exchanging documents before the hearing; retaining experts; deciding how the children will be heard from; exchanging agreed statements of facts, will-say statements, written arguments and books of authority before the hearing; receiving evidence at the hearing; choosing the form of the arbitrator’s award; and, determining if and on what grounds appeals may be brought. Here’s a portion of the pick list by way of example:

The pick list is lengthy to be sure, although it’s fraction of the size of the rules of arbitration I drafted. However, it does have the advantage of encouraging the parties and their lawyers to turn their minds to all of the procedural aspects of arbitration that can be adapted or eliminated, and it does so in relatively plain language. Once the procedural choices have been made, I then create an individualized set of rules by cutting-and-pasting the relevant clauses from the full set of rules, following the parties’ procedural preferences. (Eventually I’ll tag each choice with the rule it refers to, making my life a little bit easier.) So far, people are finding this to be a helpful approach.

Read the pick list on my website at www.boydarbitration.ca/rules-of-procedure/. I’d appreciate your feedback and comments. I’m sure it’s not complete, and I’m even more sure that it can be greatly improved. The pick list is also available for download in PDF format.

As with almost all of my other writing, please feel free to save, redistribute, adapt, repurpose and reuse my draft rules and the pick list as you like. All I ask for is credit as the source.