The Joy Of An Ex - Arbitration And Private Court
Family disputes are often high stakes, high stress situations
. The emotional well-being of children and the parties' financial security may be at stake. The interpersonal dynamics are complex with bruised egos and anger clouding common sense and good judgment. Solving the issues in a family dispute in a way that is the least stressful, the least costly, and the most durable is therefore in everyone's best interests.
There are many ways to settle a family law dispute in Ontario:
- Litigation in the public courts
- Arbitration in a private "court"
- Mediation
- Collaboration
- Negotiation
The principal difference between each of these dispute resolution methods is the varying level of control the parties themselves maintain or give up in working out a solution to their problems.
In the negotiation process, the parties themselves work out the issues in any way that works for them. They maintain total control. If they are unable to negotiate an agreement between themselves, they can still mediate, arbitrate or litigate.
In a mediated dispute, the parties also work out the issues in any way that works for them but with the help of a mediator whom the parties trust. While the mediator facilitates a resolution, he or she does not impose a solution. The parties themselves maintain total control. If the parties with the help of a mediator are not able to resolve their dispute, they can still arbitrate or litigate.
In the litigation process which takes place in the public court system, the parties can be compelled to participate in the process and a judge not chosen by the parties imposes a binding enforceable solution on the parties. At any time until a judge renders a judgement in the mater, the parties can discontinue litigation and try to resolve their dispute by negotiation, mediation or arbitration.
In the arbitration process which takes place in the private "court" system, the parties voluntarily agree to give control over to an arbitrator jointly appointed by them who imposes a binding, enforceable solution on the parties. The arbitrator in effect assumes the role of the judge in the public court system.
No one in a matrimonial dispute wants to give up control of the process and hand it over to a stranger. But when parties are unable to resolve their family differences on their own, arbitration (private court) is often a better solution than litigation (public court).
Who Are the Participants in an Arbitration?
Like litigation, arbitration is an adversarial process. Generally, each side is represented by a lawyer, presents evidence, and has an opportunity to cross examine the other party and their witnesses and experts if any are called to testify. Arbitration can be as formal as a trial with the rules of evidence and procedure applying if the parties so choose.
Generally arbitration is faster, less expensive and a more satisfying process than litigation because the process is voluntary, the parties themselves choose the decision maker and therefore the outcomes often better reflect the parties' shared values.
Where Does an Arbitration Take Place?
Arbitration takes place in a private setting such as a conference or meeting room or at the office of one of the parties' lawyers. Sometimes, the physical set up resembles a trial with each party and their lawyer sitting at their own table and the arbitrator sitting at his or her own table directly ahead. A record of the proceedings is generally maintained in the event either party is unhappy with the outcome and requires a record in order to attempt to appeal a ruling.
What Kinds of Orders Can an Arbitrator Make?
An arbitrator can make an order dealing with most of the significant issues in a matrimonial dispute such as equalization of net family property, child support and spousal support. An arbitrator can even make a declaration regarding ownership of property.
The only limitation on the authority of a family law arbitrator is that he or she cannot grant a divorce. A party's marital status can only be changed by order of a judge of the Superior Court of the province.
Copyright (c) 2011 Jackie Ramler
by: Jackie Ramler
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