Family Law in Alberta: What are Mediation and Arbitration?
As our Court of King’s Bench and Provincial Court become more and more congested, there is increasing pressure placed upon family law litigants to take their dispute to a private mediator/arbitrator, whose services are paid for by the parties. Our law firm in Calgary, Alberta, The Calgary Legal Team, are experienced experts in assisting you with mediation/arbitration.
What is Mediation?
Mediation is a voluntary and confidential process in which an impartial third party facilitates open and respectful communication between parties. In mediation, the mediator can assist parties in reaching a resolution, but they cannot impose a decision upon the parties. Family law mediation may be useful where parties are able to work together in resolving their outstanding custody and financial issues.
For parties who choose stand-alone mediation, if they are unable to settle their differences; through this process, they may then revert to the regular family litigation process by filing applications and proceeding to trial. As some form of alternate dispute resolution is required before trial, attending a private family mediation Calgary can fulfill this requirement. Alternatively, parties may continue with alternate dispute resolution by shifting from mediation to arbitration.
Matters Unsuitable for Mediation
Generally speaking, any matter where there are no safety concerns about the parties’ meeting is suitable for stand-alone mediation, even if the mediation is brief. In addition to providing the opportunity to settle outstanding issues, mediation is an opportunity to get a better understanding of the other party’s position should the matter revert to the family litigation stream, making it a valuable use of financial resources.
What is Arbitration?
Where parties are unable to resolve their outstanding issues at mediation, the mediator can take on a new role as an arbitrator, basically acting as a judge who can make both interim and final arbitration awards. These awards can then be converted to court orders and enforced by the Court of King’s Bench.
Matters Unsuitable for Arbitration
- High-conflict post-separation relationships are generally unsuitable for arbitration. In the separation process, a high-conflict individual’s end goal directly conflicts with the end goal of alternate dispute resolution, which is to resolve the outstanding issues between the parties in a way that (a) is fair and equitable; (b) allows the parties to remain civil; and (c) decreases the financial cost of the separation process.
- Relationships with a significant power imbalance, either with or without domestic violence, are often unsuitable for arbitration. During the marriage, the parties may have developed a relationship dynamic in which the dominant partner always gets their way. Often that more dominant personality expects this to continue in the alternative dispute process and for the less powerful party to acquiesce to keep the peace. This can result in an individual accepting a less favorable settlement, even after receiving independent legal advice.
Benefits of Mediation/Arbitration
If a matter is suitable for mediation/arbitration, there can be significant benefits, including:
- Parties can reach a full and binding separation agreement very quickly after separation;
- The cost may be less than proceeding to trial;
- Parties often aside their anger and learn how to work cooperatively to resolve their issues at the mediation stage to avoid having a decision imposed upon them at the arbitration stage; and
- If the parties are not able to resolve matters at the mediation stage, the arbitrator may impose a decision upon them;
- Depending on the terms of the mediation/arbitration agreement, the arbitrator’s award may be unappealable.
Pitfalls of Arbitration
- Once parties have committed to arbitration, there are very limited ways for them to dispose of the arbitration process should they change their minds;
- The process can cost far more than proceeding to trial; and
- Depending on the terms of the mediation/arbitration award, the arbitrator’s award may be unappealable or less appealable than a judge’s decision.
Our next several posts will examine the Arbitration Act (Alberta) in depth, including where the arbitrator obtains their authority and issues with the standard form of the arbitration agreement in Alberta. We will also explain why individuals should be cautious about entering into an arbitration agreement. If you are interested in discussing mediation and arbitration agreements with an experienced Alberta law firm, contact us at The Calgary Legal Team for a free consultation.