Mediate or Arbitrate a Family Dispute

Published on 29 August 2022, 07:22:56 AM

You’ve agreed to disagree. Now you just need to resolve those nagging family problems holding you back from divorce or separation. Talking it over at the kitchen table or sending letters from a lawyer hasn’t fixed it. Time to mediate or arbitrate.

Who Does Mediation or Arbitration

Mediators and arbitrators can be family lawyers, social workers, psychologists, alternative dispute resolution professionals or have totally unique backgrounds. While not mandatory, Ontario mediators and arbitrators often belong to professional organizations with training and conduct standards. Although unregulated, arbitrators follow Ontario’s Arbitration Act and Family Law Act.

Mediate a Separation or Divorce

Separated couples often find family mediation highly effective. They report liking the process and outcomes. It’s not that costly (about $5,000) and helps couples solve problems faster than going to court. Ontario lawyers agree: 57.5% of their family mediations are successful or so they told the Canadian Research Institute for Law and the Family. The upshot: don’t let family issues fester when you could mediate an end to your dispute. 

When to Mediate

Parenting disputes or financial disagreements are perfect for family mediation. You can iron out parenting plan wrinkles, decide child access, divide property or move your divorce along, all with the aid of a family mediator. Private mediation is voluntary and more likely to get the results you want. Mediators say it’s the best way to get cooperation that lasts.

When to Say No to Family Mediation

Just say no if: 

• you are too far apart on the issues
• you’re afraid of a partner
• criminal charges have been laid
• bail terms prevent contact
• or the Children’s Aid Society is involved.

What Mediators Can’t Do

A mediator, or arbitrator for that matter, can’t give you legal advice or “be on your side”. You’ll still have to hire an independent legal advisor if you want one at the table. What they can do is to try to find common ground by:

• meeting separately with you to understand the issues
• deciding if you are ready and consent to mediate
• checking for violence
• making mediation safe and neutral
• letting you express yourself without getting overly caught up in emotions
• figuring out legal, emotional or psychological issues that are holding you back
• focusing on “the best interests of the child”, compulsory in family law
• guiding you to different options 
• encouraging you to find solutions
• dealing with difficult negotiations
• talking separately to both of you about settlement options
• hearing and respecting your feelings and wishes.

Because mediation is voluntary, it’s not legally binding unless you sign a legal agreement or get a court order. 

Divorce or Separation Information Programs are Mandatory

Arranging your own mediation is a wise move. Filing a family law case in an Ontario court requires you and your partner to attend a mandatory information program, online or in person. 

The MIP gives you the lowdown on:

• separation, divorce and their effects
• alternatives to lawsuits
• family law
• what to expect in family court
• separation or divorce resources in your area.

Why delay the inevitable if you can get to yes without the fuss? 

Exceptions to the MIP Rule

You may be excused from attending a MIP if:

• you both consent to a court order
• your claim is limited to divorce, costs or a court order based on a prior agreement or  order
• or you’ve already attended a MIP.

Going to Arbitration

Mediation hasn’t worked out for you. Now consider arbitration. Arbitrators review documents, ask questions and make arbitration awards in writing or at a hearing. You receive an explanation of the reasons and, in some cases, can appeal it in court. Except for your own lawyers, you and your partner share the cost 50/50.

Getting a Legally Binding Arbitration Decision

An Ontario family arbitration award is legally binding in court if:

• it’s in writing
• solves an existing dispute
• the award states how to appeal it
• Ontario law is used
• you both have independent legal advice certificates, which your lawyers provide
• you were both screened for domestic violence or power imbalances
• the arbitrator reviewed the screening
• and the arbitrator is trained.

Overturning a Family Arbitration Agreement

If you think you were treated unfairly during an arbitration, ask an Ontario family lawyer. Ontario courts can  overturn an arbitration agreement if it’s clear you don’t understand it or were unaware of the outcome of signing it..

Weighing Mediation vs. Arbitration

Arbitration costs significantly more than mediation ($12,000 to $40,000) and is more involved. You can only withdraw if you both agree. You usually need a lawyer and legal research, an arbitration application and affidavits. Set aside time for disclosure — reviewing financial documents, emails or letters your partner provides. Expect to draft information and legal pleadings or work with your lawyer to do so. It’s often cheaper than going to family court and unless you appeal, arbitration is completely confidential. You could be happier than airing your family laundry in court. 

Independent Legal Advice for Mediation or Arbitration

Axess Law’s Ontario family lawyers can advise you on mediation, arbitration or other legal options. Virtual family lawyers are available by online day or evening, at your convenience. In person appointments can be made with our licensed Ontario lawyers at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices. Dial toll-free to 877-522-9377 or in Greater Toronto at 647-479-0118 or using our online booking form. 
Click here to learn more about Axess Law’s family law services.