ARBITRATION – SHOULD I OR SHOULDN’T I
In an earlier blog I discussed mediation and the merits of dealing with issues such as custody, access, spousal and child support and equalization through that type of process. At that time I indicated that there would be a later post about arbitration and this is it.
There are those who believe that mediation/arbitration – as a package – is a better alternative than the actual in court process. There are those lawyers who include mediation/arbitration clauses in domestic contracts without giving a great deal of thought to the implications of those clauses to their clients. As a result many, many people are encouraged to sign mediation/arbitration agreements or domestic contracts that compel them to follow that road and which takes them out of court almost completely.
Arbitration may be presented to you as an alternative to the courts at the very beginning of your matrimonial dispute process or it may be a provision in your domestic contract or separation agreement listed under the heading ‘dispute resolution’ . Most often it is not carefully discussed and people sign these agreements without having a full understanding of what they will be facing.
Beware. Once you have signed that agreement you are locked into that process and cannot get out until the arbitration is finished. You cannot change your mind halfway through. Only once the arbitration is concluded can you appeal the arbitrator’s decision to a court of law – and only if you have not waived that right in the agreement.
Issues such as support, custody, access and equalization can often be resolved in mediation and at a cost far lower than the substantial financial burden you will incur going to court. Does the same apply to arbitration. Absolutely not. And usually no one explains this before you sign the agreement.
Arbitration is in fact the hiring of a private judge. That means that you will be paying for not only your own lawyer but for the judge as well. And private judges don’t come cheap. In addition to the additional cost of the private judge (the arbitrator) a court reporter is required during the arbitration and that charge as well has to be paid by the participants. At the end of the process there will be a cost award against the party who loses and that will likely include the successful party’s share of the cost of the arbitrator.
Further to the cost issue there is a scheduling issue. Arbitrators are almost always lawyers (or retired judges) who are in private practice and who have their own heavy schedules to contend with. That means that arbitration often takes longer from beginning to end than the court process.
Remember that the same person who was your mediator is going to be your arbitrator. During mediation you are encouraged to bare your sole and tell the mediator how you personally feel about every issue. He or she may already have prejudged you. He or she may not like you. That is the same person who is going to be your judge during the arbitration. Your mediator will no doubt tell you that once mediation ends and arbitration begins they will easily forget everything that went on during the mediation and start the arbitration with a fresh slate. Is that really possible?
I encourage anyone considering mediation/arbitration to ask a lot of questions. Do your homework. Understand what you are doing. If there is a dispute resolution clause in your agreement be conscious of the fact that the process may and often does get triggered at a later date. If you are about to try to resolve a dispute by using arbitration check out the proposed arbitrator. Ask for references. Get a careful cost estimate. Know as much as you can before you agree.
I do not mean to suggest that this process is not the right process for a lot of people. There are many very good mediators and arbitrators who will work hard to achieve a just and principled result at the earliest possible stage and who will do a very good job in assisting all of the participants to reach that goal efficiently. I am just encouraging you to go into the process with your eyes open.
Steven M. Bookman is a lawyer who specializes in family law with offices in central Toronto. He can be reached at [email protected] or at 416-488-2243.