1. Introduction
  2. Context
  3. Choosing Med-Arbitration
  4. Choosing the Right Med-Arbitrator
  5. Negotiating the Most Appropriate Med-Arbitration Contract
  6. Preparing for the Procedural Conference
  7. Choosing the Best Arbitration or Med-Arb Process
  8. Timing of Gathering Evidence
  9. Methods of Adducing Evidence
  10. Models of Decision-Making
  11. Deciding on Representation
  12. Conclusion

 

By Jennifer Cooper, Q.C. and Eugene Raponi, Q.C.

 

A.  Introduction

The genesis of this project followed an extraordinary meeting that took place at the 2016 National Family Law Conference in Newfoundland and Labrador. A lunch meeting was convened by the organizers to afford attendees a forum for discussing Med-Arbitration[1]. It was attended by easily thirty practitioners from across the country. There was a spirited debate and exchange of information about what was happening across the country in this area. It was clear that Med-Arbitration had taken hold in almost every part of the country, that almost everyone was doing it a little differently, and there was much to say about its strengths, weaknesses and how to enhance the strengths and reduce the weaknesses.

When we returned to Victoria, it occurred to us that:

  • the dialogue regarding this practice area should continue,
  • the dialogue should include practical process tips and guidelines, and
  • practices in one part of the country should, where possible, inform practice in other parts of the country.

It also occurred to us that in the material presently out there in the form of continuing legal education courses as well as texts and other treatises in the area, much of the discussion related to the academic and hypothetical; very little related to actual practice – the nuts and bolts.

Family law Med-Arbitration have become burgeoning areas of practice in British Columbia, following the introduction of the Family Law Act and revised Arbitration Act (formerly, the Commercial Arbitration Act).  Suddenly family law arbitration formally existed in legislation as a process choice.  Arbitration awards could be filed and enforced at court the same as judge’s decisions.  Counsel began to recognize the many advantages of a streamlined process for decision-making when negotiation or mediation was not successful.   

We would suggest, though we have little in the way of empirical evidence to support this, that family law Med-Arbitration are particularly flourishing areas of practice on Southern Vancouver Island.

In a weak moment, we decided that we should be the ones to develop a presentation for this Family Law Conference that would continue the dialogue.

We bring a practical perspective based upon our experiences as Med-Arbitrators.  We are hoping that this may assist in developing the practice in other parts of Canada, and in the various initiatives that are being undertaken to develop standardized Med-Arbitration participation agreements, standards of practice, rules, rosters and designations.

B.  Context

The practice that we have developed is, of course, subject to British Columbia legislation. Although the legislation across Canada is similar, there are significant differences from province to province. That must be borne in mind in terms of lessons learned.

For example, the legislation in Ontario is much more regimented than in any of the other provinces. It carries extensive reporting requirements. By contrast, the legislation in Alberta, along with the case law that has interpreted it, imposes almost no formal requirements: Alberta is the Wild West when it comes to arbitration. The British Columbia model is somewhere in between.

Having said that, it appears to us that the courts throughout Canada have embraced family law Med-Arbitration: they have, almost as a rule, left the parties to design their process as they see fit and to live with the consequences, without court interference.

This accords with our view of the way it should be and in accordance with the view of most practitioners.

A study recently published by the Canadian Research Institute for Law and the Family (CRILF)[3] concluded that:

Consistent with trends in the family justice area over the last decade, the findings from the lawyers’ survey indicate that lawyers are using, and prefer to use, dispute resolution processes other than litigation to resolve family law disputes. Four-fifths of respondents use mediation, almost two-thirds use collaboration, and almost one-third use arbitration.

Moreover, almost all lawyers surveyed agree that people should attempt to resolve their dispute through another process before litigating, and almost three-quarters agree that, except in urgent circumstances, people should be required to attempt to resolve their dispute through another process before litigating. Three-quarters of lawyers also agreed that litigation should only be used as a last resort, when other dispute resolution processes have failed (pp. 53-54).

In preparing this paper, and without doing an exhaustive survey, we reached out to busy practitioners that we knew were actively arbitrating and asked for information about what they were doing and how it was working out.  We examined our own way of doing things on Southern Vancouver Island and did a critical analysis of the strengths and weaknesses. In doing so, we hoped to share the good work that is being done, and the lessons learned so that together we can improve the practice of family law Med-Arbitration.

C.  Choosing Med-Arbitration

The most important reason to choose Med-Arbitration is to be able to design a process that is proportional to the issues involved.  Therefore, the most important question to ask is: is the dispute suitable for Med-Arbitration?  If the dispute:

  • will require numerous interim applications over a protracted period of time,
  • will require the inherent or equitable jurisdiction of the court, or
  • involves dangerous or exceedingly high conflict personalities,

then skip arbitration and head straight for court (with perhaps a stop along the way to try mediation).

The other advantages of arbitration – privacy, choice of adjudicator, timeliness – are, in our view, not sufficient to outweigh its disadvantages in the types of situations outlined above.  At some point those other advantages become illusory. For example, the advantage of privacy is only achievable if there is no appeal or recourse to the courts following an award. That is not possible in family law.  As another example, although it is a huge advantage to be able to choose the arbitrator, what happens when that neutral is not readily available and there are applications to be brought over various interlocutory issues?  The courts are always available.

Generally, however, it is to everyone’s advantage to be able to design a process that is tailored to the parties and the dispute.  The CRILF study noted above confirms this: recourse to the courts is usually the poorest choice for most cases.

Our experience on Southern Vancouver Island is that parties prefer mediation/arbitration to straight arbitration.  Again, that accords well with the findings of the CRILF study.  Occasionally the parties will have done their mediation phase with a different mediator who has declared defeat and proposed that the parties move to arbitration.  Either way, we find that most parties are successful in settling at least some of their issues during a mediation phase, and the mediation also functions as a kind of discovery for understanding and narrowing the issues. We recommend mediation followed by arbitration in most family law disputes as a preferred choice.

D.  Choosing the Right Med-Arbitrator

This is the starting point for Med-Arbitration and something that we are learning as we go along.  Just like judges, Med-Arbitrators have styles and approaches that will be more appropriate for some cases than others. Except that unlike court, you actually have the opportunity to pick your dispute resolution professional.

Here is a checklist you can use which we hope will be of assistance when exercising that choice.

  • Experience as a family law lawyer

You will want someone who understands the time pressures, cost pressures, and client management skills involved in a family law practice.  If you have a high maintenance client with unlimited money, you might want a Med-Arbitrator who can meet their expectations of rarified personal service and attention to every detail and concern.  However, if your client has limited resources, either emotionally and/or financially, you will want someone who understands the concept of “proportionality”.  And the quickest way to gain that understanding is having worked in the trenches.

  • Knowledge of family law

You will want someone that you don’t have to teach the law to.  This doesn’t mean that as counsel you are going to abdicate your responsibility to argue law where that is needed.  But you want to know that counsel and the Med-Arbitrator are going to be operating from a common understanding of family law.  This improves efficiency and theoretically also reduces the chance of appeals based on an error of law.

  • Experience as a family law mediator

This is essential when undertaking a Med-Arb. The intention is to get the thing resolved in the mediation phase if possible and the skill of your professional as a Mediator will matter greatly.

  • Style as a family law mediator

This is the same as when you are choosing a mediation-only mediator but there will be one important difference.  To preserve neutrality as an arbitrator, you will find that Med-Arbitrators will not be as evaluative during the mediation phase(s) of the process.[4]

  • Experience as a family law litigator

This can be helpful in running an Arbitration, but most rules governing Arbitration streamline the process.  For example, there are typically no examinations for discovery, direct evidence is often in affidavit form, and evidentiary rules are generally relaxed.[5]  Except for those very rare cases where the clients want a full blown supreme court style trial and are willing to pay for it, most clients are choosing Med-Arbitration because it will be more cost-effective and time efficient.  You will likely want someone who doesn’t have an entrenched idea that conflict resolution can only be a private imitation of a public trial.  Again, think of “proportionality”.

  • Training as an arbitrator

In British Columbia, there are specific rules about who is entitled to act as a Med-Arbitrator and significant training is involved.[6]  After completion of training, as lawyers we get certified by our Law Society as Mediators and as Arbitrators.  So the public can have some assurance of baseline ability.  Mediation particularly draws upon a skill set which isn’t something that the average lawyer will have been exposed to at law school or in practice.

  • Experience as an arbitrator

Many lawyers with significant family law experience can perform well in the role of arbitrator, even if that role is relatively new to them, particularly if they have received arbitration training.  Experience though does matter, and this is a fair question to ask when retaining your Med-Arbitrator. In British Columbia there is at present one organization which has developed a Roster of Med-Arbitrators so that there can be some assurance of experience in addition to the assurance of training in this province.[7]

  • Assurance of rigorous neutrality

This is a key ingredient and most Med-Arbitrators will try and do everything possible to maintain that neutrality.  They understand that their credibility in this area means everything to their continued work in the role.  However, since Med-Arbitrators are typically senior counsel, they often have long-standing relationships with other counsel.  Further, sometimes your counsel opposite, or their firm, will also bring a lot of work to that Med-Arbitrator.  Some counsel believe that these factors can influence their decisions, not to fly in the face of the law, but in areas where discretion is being exercised. It is perfectly acceptable to ask the Med-Arbitrator who they work with to try and get a sense of this.

  • Style

Just like with mediators, most counsel will try and match the client to the professional.  Do they need someone who is forceful or gentle?  Has a sympathetic ear or is no-nonsense? Does the case need someone who is big picture oriented or detail oriented?  Someone with a lot of energy?  Or who will be very calm?

  • Values

One respondent to our survey admitted that in the Toronto area at least, where there are lots of Med-Arbitrators to choose from, counsel will often look to choose a professional who holds values that may be helpful to their case.  For example, do they highly value the contribution of a stay-at-home mom when compensatory spousal support is at issue? Are they generally sympathetic to a father’s desire for equal parenting?   Most Med-Arbitrators will work hard to maintain neutrality, but we are human after all.

  • You/Your Client’s Personality

If you prefer to be very well prepared, and leave as little as possible to chance, then you will likely enjoy an arbitration where the direct evidence is all provided in writing, in advance.  This permits you to fully know the case that you are going to need to meet and prepare the best possible cross-examination.  It will also allow you to shape your client’s evidence in the best possible way, without worrying about the vagaries of your client’s memory or nerves during an oral direct examination.  Think of how you like to work as you explore the process options that various Med-Arbitrators like to employ.

  • Cost

This is a practical consideration since Med-Arbitration services are privately funded.  One consideration is hourly rate, but that is not the end of the inquiry.  Some decision-makers are simply more efficient, and this applies not only to embracing a streamlined process, but also to factors like reading and absorbing case law and, most particularly, writing reasons for decision in support of their Awards, which can be a very time-consuming process indeed. Like quoting a cost for legal services generally, this is a difficult area, but there is no harm in asking so that client expectations can be managed.

  • Availability

Most family law matters are time sensitive and certainly all clients believe that their case is a priority.  Generally, you are looking for a Med-Arbitrator who can offer early dates for hearing. But a Med-Arbitrator’s availability is not only related to their case load, but also to their ability to be flexible while your case is in progress.  They may be prepared to hear applications or consider evidence outside of regular court hours: a teleconference with counsel at 8:00 in the morning, or a hearing on a Saturday morning.  They may be prepared to split the case into issues and deal with them on separate days to accommodate counsel’s schedule, for example parenting, property, and support. This is something to canvas prior to retaining the Med-Arbitrator if it is going to be important to your client or to you as counsel.

  • Timeliness

This primarily relates to the ability to deliver an award/reasons in a timely fashion.  The written Med-Arbitration agreement should set out the timeline for receipt of the Award. Thirty days would be typical; longer in more complex cases. You should inquire about that and ask the Med-Arbitrator if they find that they are typically able to honor their commitment.

  • Creativity

Will the Med-Arbitrator be prepared to work with counsel to create a streamlined and appropriate process, something which a very busy Calgary Med-Arbitrator likes to call “fitting the forum to the fuss”?[8]  Or will they be a relatively passive recipient of evidence and then prepare the award?  Again, a general process discussion is a good thing to have before the retainer if possible.

To summarize, when choosing a Med-Arbitrator, think hard about what you, your client and your case really need in order to get to resolution. Then gather the necessary information: from your client, from colleagues, from the community, and from the Arbitrator themselves.  Do not be afraid to ask questions.  You are the client after all – a very different relationship than you have with a judge in a courthouse.

E.  Negotiating the Most Appropriate Med-Arbitration Contract

In the next section, we will identify the various choices in terms of process.  Before one gets there, however, counsel should carefully read the draft Arbitration contract put forward by the neutral.  A sample Mediation/Arbitration Agreement (which we refer to as the Participation Agreement) is attached.

It will set out a number of process assumptions and provide for a choice of default rules.  Make sure that you are:

  • familiar with your provincial Arbitration Act,
  • familiar with the default rules set out in the draft agreement, and the other default rules available,
  • clear on the issues to be resolved,
  • clear on the intended financial consequences of the process.

The sample Participation Agreement sets the BCICAC Rules as the default rules where the parties have not made specific choices.  These rules assume a reasonably summary approach, unfortunately geared towards a commercial dispute.  There are no such summary rules that we are aware of which are designed specifically for a family law arbitration.  We prefer that the default rules be as simple as possible.  Somewhat more detailed rules are provided for in the BCICAC longer Rules.  Although more detailed, they are not as involved as court rules.  In our view, providing for overly complex default Rules defeats the cardinal rule of proportionality.  The default becomes the norm – one might as well proceed to court since at least the Judge’s salary is paid by the state.

Always look at what the rules provide for in relation to costs. The shorter Rules provide that the costs of arbitration that may be awarded are essentially the arbitrator’s fees.  You may wish to choose a different approach to costs: from no costs to full indemnity.

The choices are normally determined in the first (or subsequent) procedural conference.  The procedural conference normally takes place by telephone conference with the Med-Arbitrator and counsel.

F.  Preparing for the Procedural Conference

Before the Med-Arbitration commences, the Med-Arbitrator will normally convene at least one procedural conference with counsel which will flesh out detail around prehearing procedures and the arbitration itself.  These conferences are most often conducted by teleconference and will usually last about an hour.  Although the Arbitrator will guide you through an agenda, it is helpful if you have considered in advance what will work well or be needed on your case.  We attach to this paper a sample checklist for use at the procedural conference that you can use to prepare and also to ensure that the Med-Arbitrator has addressed all necessary issues.

Pay particular attention to:

  • the choice of parties – are there corporate defendants? Will the award necessarily deal with the rights of parties other than the spouses and children (parents with debt or other claims, co-owners of property etc.)?
  • the issues to be determined – this sets out the parameters of the arbitrator’s jurisdiction, so they need to be set out with sufficient particularity to ensure that the arbitrator is in a position to adjudicate on them,
  • the remedies you will be seeking – are they remedies that are within an arbitrator’s power to award?
  • document production and disclosure – what is a reasonable time frame to get the matter ready to proceed?
  • the time-frame, including setting dates and length of hearing,
  • the need for any preliminary or interim applications (not typically required in a mediation/arbitration),
  • nature and timing of the award – summary award or full reasons? How quickly do you want the award?
  • choice of facilities,
  • and finally, the process choices – set out below.

G.  Choosing the Best Arbitration or Med-Arb Process

There are in our view three things to consider in designing a Med-Arbitration process:

  • Will evidence be gathered during the mediation phase?
  • What methods of adducing evidence will be used during the arbitration phase?
  • What model of decision-making will be used by the Arbitrator?
  1. Timing of the Gathering of Evidence

Broadly speaking, there are two approaches to the gathering of evidence in a Med-Arbitration – what we will refer to as the “seamless” approach, and the “two-step” or traditional approach.

  • The “Seamless” Approach

In this approach, the gathering of evidence begins within the mediation stage.  The hope, and expectation, is that most if not all issues will be resolved in mediation and, if issues remain to be arbitrated, the Med-Arbitrator can take into consideration the evidence brought out in the mediation as evidence that will form the basis of the award.

The advantage of this approach is that it is efficient and focuses the parties on those elements of their case that may be challenging to prove compellingly – so, it forces more meaningful risk assessment analysis. That often leads to consensus.

As well, it is easy in this approach to schedule with some precision the days required for the complete process. Often, we can schedule the process in either two, back-to-back, days or two days spread out over a week or two.

The disadvantage to this approach is that it requires more preparation from the parties/counsel. The mediation briefs need to be more complete; the analysis needs to be more complete; the books of documents need to be more complete; legal authorities need to be identified early where there are issues of law to be considered.  Some counsel are also concerned that their clients will feel less free to speak their mind in mediation when they are aware that everything (except settlement positions of course) will form the evidence for the adjudication later.

Although we refer to this as the “seamless” approach, it is not truly seamless. It is critical that the parties clearly understand when the mediation stage is complete and that they are embarking on the arbitration stage. In British Columbia, there is a clear requirement for written confirmation of the commencement of the arbitration stage. We refer to it as seamless because of the continuum between facts and evidence led in the mediation stage which forms part of the evidence in the arbitration stage.

  • The “Two-Step” or Traditional Approach

In this approach, the parties proceed to mediation in a relatively traditional manner. To the extent that any issues remain at the conclusion of the mediation, those issues will be referred to the arbitration phase. At this point, the parties design the process to conclude the remaining issues.  None of the information exchanged in the mediation is considered in the arbitration.

The advantage of this approach is that it allows for a more informal first stage. The mediation/arbitration briefs need not be as complete. This means that, assuming that consensus is reasonably likely, there is less effort and cost in preparing for the initial, mediation, phase – which may end up being the only process required.

The disadvantage of this approach is that the momentum that is created from a positive mediation stage can be lost. Parties can easily become re-entrenched in their positions. As well, there will almost inevitably be a significant gap between the conclusion of the mediation stage and the scheduling of the arbitration stage. That means that there will likely be scheduling issues.  The other disadvantage is the additional time and cost: much of the information exchanged must be repeated so that it can be “officially” considered during the arbitration phase.

  1. Methods of Adducing Evidence

Arbitrations involve: adducing evidence, giving oral or written submissions which may include legislation and case citations, and then the Arbitrator’s award. The real time-saving can occur in how evidence is adduced.  Agreed statements of facts are extremely common: they not only save time during the hearing, they help counsel discover what facts are really material and really in issue. The same with books of agreed documents. Occasionally all evidence is agreed, and the only issue is a legal one.  Direct evidence given in writing for the parties and their third-party witnesses is extremely common and well-liked by counsel.  It allows your case to come out exactly as clearly as you are able to write it.  It gives maximum opportunity to know the case you have to meet without the time and expense of examinations for discovery. And it permits counsel to design an efficient and effective cross-examination. Occasionally all evidence will be oral, but subject to time limitations.

Choosing the methods for adducing evidence is a careful balance.  You need to respect the rules of natural justice by giving people the opportunity to provide material evidence, and to test it, especially where there are credibility concerns.  But the key is proportionality: most people simply cannot afford, and do not need, a supreme court style trial for the resolution of their family law issues.

J.P. Boyd has been drafting family law arbitration rules and was kind enough to share with us the introduction to these still draft rules. We think that they nicely summarize the options that are available and that we have used and accordingly we set them out below.  The options increase in complexity and cost as they go along.

In reviewing these options, we note that Mr. Boyd considers that the method of adducing evidence will be primarily related to the anticipated extent to which the parties are able to agree on material facts.  In our experience, the choice of method of adducing evidence is more often related to what is proportional to the dispute. Proportionality considerations include the time and money resources that the clients have available, the value of what is at issue, and the relative simplicity or complexity of the matters in issue. In other words, more streamlined family law Med-Arbitration processes are designed when the parties do not have much money to fund the dispute, when a resolution is needed very quickly, when the monetary value of what is at stake is low, and/or when the matters in issue are not very complex.

  • Decision on a Legal Issue

This process is intended to resolve one or more legal issues when the parties mostly agree on the important facts. There are no witnesses and no other evidence, apart from documents, is presented. There may or may not be an oral hearing before the arbitrator. This process will usually be the fastest and least expensive way of concluding an arbitration.

The parties prepare an agreed statement of facts relevant to the legal issues then exchange books of authorities (or case citations) and documents. Once these steps are complete, the arbitrator will receive either oral or written submissions and the arbitrator’s award will follow.

  • Decision on the Written Evidence

This process is intended to resolve legal issues when the claimant and the parties mostly agree on the important facts, or when any disputes about the facts are relatively minor. There are no witnesses, and all evidence is presented in writing, through written statements, experts’ reports, business records and other documents.

As in the previous process, the parties will exchange books of authorities or case citations. Once these steps are complete, the arbitrator will receive either oral or written submissions and the arbitrator’s award will follow.

  • Decision on Written and Limited Oral Evidence

This process is intended to resolve legal issues when the parties cannot agree on important facts and some oral evidence will help to resolve the facts in dispute. The main evidence of each party’s witnesses is presented in writing, through written statements (including affidavits) and each of those witnesses may be subject to limited oral cross-examination by the other parties. All other evidence is presented in writing, through experts’ reports, business records and other documents.

As in the previous process, the parties will exchange books of authorities or case citations. Once these steps are complete, the arbitrator will receive either oral or written submissions and the arbitrator’s award will follow.

  • Decision on Limited Oral Evidence

This process is intended to resolve legal issues when the parties cannot agree on important facts and oral evidence will help to resolve the facts in dispute. Most evidence is presented orally, through the evidence of a limited number of witnesses in a limited amount of time. The evidence of each party’s witnesses is presented through direct examination, and each of those witnesses may be subject to oral cross-examination by the other parties. All other evidence is presented in writing, through experts’ reports, business records and other documents.

As in the previous process, the parties will exchange books of authorities or case citations. Once these steps are complete, the arbitrator will receive either oral or written submissions and the arbitrator’s award will follow.

  • Decision on Full Oral Evidence

This process is intended to resolve legal issues when the parties cannot agree on the facts and oral evidence will help to resolve the facts in dispute. Most evidence is presented orally, through the direct examination and cross-examination of each party’s witnesses. All other evidence is presented in writing, through experts’ reports, business records and other documents.

The parties may choose to exchange will-say statements for the witnesses. The parties can prepare a statement of agreed facts, if any, that are not in dispute.

As in the previous process, at the conclusion of hearing the evidence, the parties will exchange books of authorities or case citations. The arbitrator will then receive either oral or written submissions and the arbitrator’s award will follow.

  • Decision on Limited Oral Evidence from Inquisition

This process is a twist for most lawyers, who are steeped in the adversarial tradition. We have found that using the inquisitorial model where the arbitrator leads the inquiry, followed by the ability of each of counsel to cross-examine, leads to an efficient and much less conflictual (i.e. adversarial) approach to receiving the evidence. It is particularly helpful in a more straightforward case. As soon as there are complexities and intricacies in terms of the evidence, it is best to leave the approach to the adversarial method. It is unlikely that the arbitrator will have as nuanced an appreciation of the documents and evidence as either the parties or counsel. The inquisitorial approach is particularly helpful where the parties appear without counsel.

  1. Models of Decision-Making

Finally, there are some choices in terms of the arbitrator’s decision-making approach. We refer to these as:

  • The Traditional Model – the arbitrator makes an award based on applying the law to the evidence.
  • Final Offer Selection – the arbitrator makes an award by choosing the final offer of one of the parties.
  • The Hybrid Model – the arbitrator makes an award by choosing the final offer made by either one of the parties – or at a point somewhere between those offers.

We will briefly discuss the advantages and disadvantages of these approaches.

  • Traditional Model

Nothing much need be said about this model as everyone is familiar with this approach. Familiarity is the key advantage.

The risk in this model, as is the case in taking a case to trial, is the complete lack of control as to the outcome. So, although it is likely that the decision-maker will adopt the analysis of one of the parties, the arbitrator’s award may “come out of left field” and be wholly inconsistent with either party’s submissions.

  • Final Offer Selection

In this model, the arbitrator is restricted to choosing the offer put forward by one party over the final offer put forward by the other. There is no “coming out of left field”.  The parties control the nature of the outcome (at least the successful party does).

The parties can choose to identify each issue that is subject to final offer selection or choose to make the final offer subject to being chosen as all-encompassing and comprehensive.  So, the parties can break the issues down to each of the component issues in dispute (spousal support, division of property, excluded property claim) or all of the financial issues as one package.

This approach is particularly useful in the “seamless” approach as it tends to force the parties to be as reasonable and accommodating as possible to the other party’s interests for fear that the other party’s final offer will find favour with the Med-Arbitrator.

Obviously, this approach is only suitable for financial issues; it would be wholly inappropriate to determining the best interests of children.

  • Hybrid Model

In this model, the arbitrator may choose the final offer of either party or make a determination that is somewhere in between those offers.  This model is intended to offer the best of both worlds: it allows for a good deal of latitude on the part of the arbitrator but offers a measure of control to the parties.

H.  Deciding on Representation

Counsel should carefully consider what, if any, part of a Med-Arbitration can be undertaken by their clients without counsel accompanying them.  This is generally due to cost considerations that such a choice would be made, but it can also relate to timeliness if counsel is unable to address an unanticipated issue due to workload issues.

The mediation portion of the Med-Arbitration is perhaps the most common process where clients might be encouraged to be self-represented. Sometimes in mediation issues can be hived off into separate meetings, some of which can occur with the clients being self-represented.

Where the Med-Arbitration process specifically ignores the information provided in the mediation phase, this can be especially low risk. It can also create a more relaxed atmosphere where there is more time to explore the details often inherent in a parenting plan or the details around property division where there are many items of importance but not necessarily high value. Even a few issues concluded in mediation will be a great help in slimming down the process and time needed for the arbitration.

Once the matter proceeds to arbitration, counsel might be less enthusiastic about their clients attending without them.  However, self-representation can be very appropriate for interim determinations, particularly when the issue is narrow and, while important to the client, not high risk for the litigation generally.  Some examples:

  • An interim parenting arrangement, particularly when the issue of primary or shared parenting has already been determined,
  • How an interim parenting arrangement might be adjusted to accommodate holidays or other special events,
  • Whether an authorization to travel should be provided for a specific trip,
  • What activities children should be signed up for pending the final hearing and perhaps how the cost should be managed,
  • How a specific property should be sold including who should conduct the sale, readiness for sale, list price and perhaps distribution of the sale proceeds when net proceeds are going to be held in trust pending a final determination.

Even for issues which are to be determined on a final basis, clients are often well able to self-represent, particularly when counsel is available to prepare them.  Some examples:

  • Really anything to do with parenting but especially issues like what school a child should attend, what activities are reasonable and necessary, and whether a child should be in French or English track, and
  • Child support when the issue is special expenses.

Finally, a good way to limit the risk is to limit the Med-Arbitrator’s jurisdiction to only decide in a certain way.  For example:

  • For spousal support the income inputs might be agreed, and the only issue will be whether support should be in the low, medium or high range,
  • Or there could be agreement that spousal support must be determined as a lump sum, even including setting the goalposts of the range, rather than having the Med-Arbitrator determine quantum and duration on a periodic basis,
  • Or for parenting time counsel might set out the percentage sharing either precisely or within a range which the Med-Arbitrator must then use to set a specific schedule.

When working with a Med-Arbitrator to design a process which will be suitable for a client to self represent, counsel should also be alert to options which will increase their comfort and ease. Some examples:

  • Holding an in person hearing at a comfortable neutral place which may be the Med-Arbitrator’s board room but might also be a private room at a familiar club or hotel or even the client’s home which can be particularly helpful if the clients have mobility problems,
  • Holding a hearing by teleconference with the parties present on separate lines and that the Med-Arbitrator conferences together,
  • Holding a hearing by videoconference using software such as Skype or Go-to-Meeting when travel time and cost is an issue, or
  • Gathering evidence by written exchange using scanned documents by email, or paper documents by delivery with only argument or cross-examination to be in person.

Counsel can maintain control of the process by considering each step of the process and how best to handle it, and by preparing their clients well along the way.

Generally, we are of the view that in family law Med-Arbitration specifically, and family law more generally, it is incumbent upon us as professionals to be as creative and flexible as possible.  This is an access to justice issue, that clients be supported as well as possible in achieving a timely and just outcome for their disputes. Clearer support from our Law Societies over unbundled services has assisted in tailoring professional services to client requirements instead of just driving clients into the hands of neighbours and family members to litigate with and for them.  Or worse, resolving very important issues without any support at all. As professionals offering private services we need to be at least as flexible as the courts, and preferably more flexible, creative and responsive.

I.  Conclusion

We hope that this is simply a continuation of a discussion that will continue both at the national level and at the local level, as we work towards a deeper appreciation of family law Med-Arbitration.  We look forward to receiving the comments and suggestions of those working in this area, both counsel and med-arbitrators.  We also look forward to seeing the product of the work that is being done by the ADR Institutes and others in this field.

 

[1] There are two distinct types of process that this paper will discuss: a process of mediation, including arbitration if the mediation is partially or fully unsuccessful, which is generally referred to as “Med-Arb”, and a process of “pure” arbitration.  By the phrase “Med-Arbitration” we are intending to cover both processes.

[2] Mediate BC has just developed a Roster of experienced family law Med-Arbitrators as well as Med-Arb Guidelines and Recommended Standards: http://www.mediatebc.com/About-Mediation/What-is-Med-Arb.aspx  The ADR Institute of BC is working on provincial standards of practice, rules, templates and designations for BC family law Med-Arbitrators, while the ADR Institute of Canada is developing similar materials at a national level for all Med-Arbitrators including family law, commercial, and construction.

[3] An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods http://crilf.ca/Documents/Cost_of_Dispute_Resolution_-_Mar_2018.pdf

[4] Mediate BC has recently produced Guidelines for Med-Arbitration: http://mediatebc.com/PDFs/1-28-Standards-of-Conduct/MED-ARB-GUIDELINES—FINAL.aspx  They require that during the Mediation phase the Med-Arbitrator should “exercise great care” in the making of any evaluative comments and before making them, consider whether they should obtain the consent of the party to whom the comments are to be directed.

[5] For example, see the BCICAC Domestic Commercial Arbitration Rules of Procedure which are commonly used in family law Med-Arbitrations in British Columbia: http://bcicac.com/arbitration/rules-of-procedure/domestic-commercial-arbitration-rules-of-procedure/

[6] Lawyers who are Med-Arbitrators must have at least 10 years experience and 134+ hours of specialized training.  Non-lawyer Arbitrators must be registered psychologists or social workers with at least 10 years experience, 84+ hours of specialized training, and 10+ hours of continuing training. They may only arbitrate parenting and simple child support matters. See the BC Family Law Act Regulation 347/2012 section 5 (1) http://www.bclaws.ca/civix/document/id/roc/roc/331105891  and the BC Law Society website: https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/

[7] Mediate BC has recently developed a Roster for professionals who are experienced in Med-Arb, in addition to their long-standing Roster of experienced Mediators.

[8] Doug Moe, Q.C., Moe Hannah LLP