Going to court is not the only way to resolve a family law dispute. For some families, arbitration and parenting coordination can provide alternative ways to address disagreements while reducing some of the uncertainty and delay associated with traditional litigation. These processes are different from mediation and from one another, and each serves a distinct purpose. Understanding how they work can help separated spouses determine whether an alternative dispute resolution process may be appropriate for their circumstances.
What Arbitration Is and How It Works in Family Law
Arbitration is a private dispute resolution process in which an arbitrator hears evidence and arguments from the parties and makes a decision. In Ontario family law, arbitration can address certain disputes that the parties have agreed to submit to arbitration. The process is governed by an agreement and applicable legal requirements, and the arbitrator’s decision may be binding on the parties.
When Arbitration May Be Appropriate
Arbitration may be considered when spouses cannot reach an agreement through negotiation or mediation but want a private process for resolving their dispute. It can be particularly useful where parties want a decision from a neutral third party without proceeding through the court system. Whether arbitration is appropriate depends on the nature of the dispute, the circumstances of the family, and the parties’ ability to participate meaningfully in the process.
Arbitration Versus Traditional Court Proceedings
Arbitration and court proceedings both involve a neutral decision-maker, but they operate differently. Arbitration takes place privately and can often provide greater flexibility regarding scheduling and procedure. Court proceedings follow formal rules and procedures established by the justice system. The appropriate process will depend on the issues involved, the parties’ circumstances, and the type of resolution they require.
The Role of Parenting Coordinators
Parenting coordinators can assist separated parents who continue to experience disputes about the implementation of their parenting arrangements. Rather than resolving the entire separation, a parenting coordinator may help parents address recurring disagreements about issues such as schedules, extracurricular activities, communication, and other day-to-day parenting matters.
How Parenting Coordination Differs From Mediation
Mediation generally involves a neutral person helping parties negotiate an agreement, but the mediator does not make decisions for them. Parenting coordination can involve a more ongoing process focused on implementing an existing parenting arrangement and managing recurring conflicts. The specific authority of a parenting coordinator depends on the agreement or order establishing the process.
Decision-Making Authority and Enforceability
It is important to understand exactly what authority an arbitrator or parenting coordinator has before entering the process. An arbitrator may have authority to make a binding decision about matters submitted to arbitration, while a parenting coordinator’s authority may be narrower and defined by the applicable agreement or order. Understanding how decisions will be implemented and enforced should be addressed at the outset.
Costs, Timelines, and Procedural Considerations
Alternative dispute resolution can involve significant professional fees, particularly where disputes are complex or require extensive evidence. At the same time, arbitration and parenting coordination may provide greater scheduling flexibility than court. Parties should understand the expected costs, timelines, procedures, and responsibilities before committing to a process.
Choosing the Right Arbitrator or Parenting Coordinator
Experience and expertise matter when selecting a neutral professional. Parties should consider the individual’s family law experience, training, approach to dispute resolution, availability, and familiarity with the issues involved. A parenting dispute involving complex educational or medical concerns, for example, may require a professional with appropriate experience.
Potential Challenges and Limitations
Alternative dispute resolution is not appropriate for every family. Power imbalances, concerns about safety, unwillingness to participate, or disputes requiring broader court intervention may make another process more appropriate. Arbitration and parenting coordination also involve costs, and private decision-making does not necessarily eliminate conflict.
Preparing for an Alternative Dispute Resolution Process
Preparation is essential. Gather relevant financial, parenting, and communication records, understand the issues in dispute, and identify your priorities before beginning the process. Obtaining independent legal advice can also help ensure that you understand the implications of any agreement or arbitration process before proceeding.
Arbitration and parenting coordination can provide valuable alternatives to traditional court proceedings in appropriate circumstances. By understanding how each process works, what authority the decision-maker has, and what costs and limitations may apply, families can make informed decisions about how best to resolve ongoing disputes.
Join our free webinar, Arbitration and Parenting Coordinators: Alternatives to Court, on October 20 at 5 PM ET.
