In the simplest of terms, divorce arbitration is one type of dispute resolution wherein each party tells their side of the dispute. An impartial, third-party arbitrator then determines a legally-binding decision. It’s important to note that arbitration is only available if both parties agree to the process. As such, if one spouse refuses arbitration there will be no choice but to litigate.
What Does The Arbitration Process Look Like?
Arbitration is a process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial, neutral third party. A hearing is conducted and a binding decision is rendered. The Arbitrator has an obligation to be impartial, to consider the evidence and render a binding written decision in accordance with the Arbitration Agreement, the principles of natural justice and the Arbitration Act. As your lawyer, my role in the arbitration will depend on the level of formality selected for the arbitration but generally involves my preparing for the questioning and cross examination of witnesses, legal research, the preparation of any Affidavits and written legal briefs, preparing and delivering an opening statement and closing argument.
How Formal vs. Informal Is Arbitration?
The level of formality of an arbitration hearing depends on what the parties can agree upon. Failing an agreement, it would be a formal process, similar to a courthouse except that its location would be in a private boardroom. The formal procedure would involve witnesses providing evidence under oath/affirmation through questioning by their own legal counsel and opposing counsel. An arbitration can also be informal. This generally means that evidence is provided in a written document called an Affidavit. Affidavits would be exchanged and then there would be an opportunity to respond to the other party’s Affidavit and those documents would also be exchanged. Thereafter, there would be a written brief outlining our position and legal arguments.
Why Choose Arbitration as an Option For Dispute Resolution?
- Efficiency – there are numerous steps that must be taken prior to scheduling a court trial and, therefore, Court of Queen’s Bench trials are typically scheduled well over six months from the date we decide to proceed to trail.
- Affordability – since arbitration provides a more streamlined process than a court trial and since lawyers are paid by the hour, arbitration can be far less expensive than a litigated resolution.
- Confidential – unless there is an appeal, arbitration sessions are private, as are the communications, documentation and notes made in the course of arbitration. Litigation involves public court appearances, documentation and evidence all of which is a matter of public record is accessible by anyone.
- Flexible – arbitrators will work with parties to accommodate work and vacation schedules. Although timelines and decisions can be imposed there are not as rigid as those imposed by Court. Litigation, court appearances and the Rules of Court are not at all flexible.
- Stress – arbitration takes place in a private boardroom. Providing testimony in that setting is far less stressful and intimidating than testifying in an open court room.
Disclaimer: The content provided in the blog posts of Jones Divorce & Family Law is general information and should not be considered legal advice. Please contact a lawyer for legal advice tailored to your specific situation. All articles are current as of their original publication date.