arbitration

When neither negotiation nor mediation work to find a solution, arbitration takes over. It’s more cost effective and quicker than going to court to settle your divorce.

Arbitration is a method of conflict resolution that brings a third party to the divorce proceedings when parties cannot come to an agreement regarding their separation terms. This process is less formal, and usually cheaper than going to court. Ground rules can be agreed upon before arbitration, and parties can choose to either have a representative speak for them, or speak for themselves.

Arbitrators are typically chosen with the consent of both parties. If a couple cannot agree on an arbitrator they can employ an individual or organization to choose and arbitrator for them. In some cases, each party can choose an arbitrator, and then the two chosen arbitrators will pick a third arbitrator. These three arbitrators then work together as a panel of three.

The arbitrator, or arbitrators, hear evidence on any issues the couple would like to address, and then make a legally binding decision based on that evidence. They explain how they reached that decision, and may reward the cost of the arbitration to one party.

FAQ

1. WHAT IS AN ARBITRATION?

Arbitration is a method of resolving a dispute in which an impartial third party, selected by the parties, listens to the facts and arguments presented and makes a decision as to how the issues in dispute will be resolved.

2. WHAT IS THE DIFFERENCE BETWEEN ARBITRATION AND MEDIATION?

In arbitration, the arbitrator decides the outcome of the dispute, after hearing evidence from both parties. In mediation, the parties themselves must decide the outcome. Arbitration is often used in situations where both parties are unable to come to an agreement through mediation.

3.WHAT IS THE DIFFERENCE BETWEEN ARBITRATION AND COURT?

In arbitration, the parties can usually choose who their arbitrator will be, whereas in court the parties cannot choose their judge. Court proceedings or Litigation are held in public, whereas arbitration is held in private. Arbitration is usually faster and less expensive than court. Court is held at a time and place dictated by the court, whereas arbitration proceedings are held at a time and place convenient to the parties.

4. WHAT ARE THE BENEFITS OF ARBITRATION?

There are many advantages to using arbitration. For one, arbitration is faster and less expensive than court, which can cost $X,000 to $XX,000 or more. Arbitration is can also be held in private location that is convenient for the parties, rather than at Alberta Court in the heart of downtown Calgary. You can choose your arbitrator, whereas you cannot choose your judge. For more information on the advantages of arbitration, please click here.

5. WHAT ISSUES CAN BE DEALT WITH THROUGH ARBITRATION?

Whatever issues the parties agree to refer to arbitration. This can be all or only some of the issues in dispute. In some cases, the agreement between the parties, whether a parenting plan, Property Agreement or some other matter that would typically send the parties to a court house will require the parties to take any dispute to arbitration.

6. WHO DECIDES THE OUTCOME IN ARBITRATION?

The arbitrator is your Justice, Judge and Master in Chambers. This person is granted the jurisdiction because of the Agreement the parties have signed, to be the sole decision maker for the issues as set out in the Agreement.

7. WHAT IS AN ARBITRATOR?

AN arbitrator is a neutral person who gives a binding decision after considering the evidence that the parties submit. In some matters, where an expert is needed, there may be a three person arbitral tribunal who is selected by the parties to be the arbitrator.
The function of the arbitrator is similar to judge in court. The arbitrator must listen to and read the evidence presented during the arbitration hearing, make rulings on such things as procedure and listen to the arguments presented by each of the parties at the end of the evidence. Ultimately, the arbitrator will make a final decision concerning the issues in dispute.

8. HOW DOES ARBITRATION WORK?

Arbitration procedures have the following sequence of events:

  1. Selecting the arbitrator
  2. Drafting the terms of the arbitration agreement
  3. Scheduling the time and location of the hearing
  4. Preparation for the hearing (including preparing the witnesses)
  5. Presenting the evidence at the hearing (including examination and cross-examination of witnesses)
  6. Making submissions to the arbitrator at the end of the hearing
  7. Arbitrator makes a decision, called the Arbitration Award

While an arbitration hearing has some of the look and feel of a court trial, the arbitration process is more informal than a court trial. Arbitration generally involves fewer, if any, pre-hearing matters that often prolong court proceedings.

9. DO I NEED TO HIRE A LAWYER IN ADDITION TO AN ARBITRATOR?

While it is not mandatory to have a lawyer, since each party will be required to present evidence to the arbitrator, parties are encouraged to do so. In this way, your family lawyer can leave no stone unturned in ensuring that your evidence is presented accurately and correctly to the arbitrator during proceedings.
Furthermore, if the arbitrator is also a lawyer, he or she cannot provide legal advice to the parties. Since aribtrator’s are a neutral party, they cannot assist either party with understanding or analyzing legal matters. An arbitrator who breaches this role would need to be set aside.

10. SHOULD THE ARBITRATOR BE A LAWYER?

Not necessarily. It depends on a number of factors. If the issues have legal technicalities to consider, you should probably have a lawyer or retired judge as the arbitrator. On the other hand, a person with a background in the area which is to be arbitrated, such as an engineer, nurse, farmer or accountant, might make the best arbitrator. In family law matters, some parties will ask a Social Worker or Psychologist to be the arbitrator. This may be because of matters regarding the best interests of children where the knowledge of a mental health professional may be helpful.

11. IS ARBITRATIOIN HELD IN PRIVATE?

Yes. The only persons present are the parties, the arbitrator and whoever else they invite and agree upon. Unlike most court cases, the public (including your neighbours and competitors) and the media cannot sit and listen to what is said or what the decision is. Only the parties and their lawyers receive copies of the arbitrator’s decision.

12. IS WHAT IS SAID IN ARBITRATION CONFIDENTIAL?

For the most part, yes. However, there are rare occasions when the arbitration award has to be enforced summarily through the courts, resulting in some parts of your dispute becoming public.

13. HOW LONG DOES THE ARBITRATION PROCESS TAKE?

It depends on the several things, including the number of issues and the number of witnesses. Usually the arbitration hearing can take place within a few weeks after the initial contact with the arbitrator. Arbitration is generally quicker than going to court.

14. HOW LONG DOES THE ARBITRATION PROCESS TAKE?

Arbitration can take place almost anywhere that the parties agree. Usually it is more appropriate for arbitration sessions to be held in conference and board rooms. In Calgary RCMV LLP arbitrators are able to arrange for those facilities. Arbitration does not take place in a court room.

15. HOW MUCH DOES ARBITRATION COST?

The cost of arbitration is usually cheaper than the cost of going to court. It depends on how long the hearing takes, since most arbitrators charge an hourly or daily rate. As part of the arbitrator’s decision at the end of the hearing, the arbitrator can order that the costs of one of the parties (including the arbitrator’s fee) be paid by the other party.

16. WHAT IS AN ARBITRATION AWARD?

It is the decision of the arbitrator. It should outline the parties’ names, the issues the arbitrator held and the decision, along with reasons, that he or she made their Award.

17. IS AN ARBITRATION AWARD BINDING?

Yes. Except under very limited circumstances, arbitration awards may not be appealed. It is final and holds the same power as a Court Order.