Mediation-arbitration is a two-part alternate dispute resolution process which allows the parties to appoint one person to play two roles to help them resolve disputes on a final basis: (1) mediator and (2) arbitrator.
The mediation-arbitration process may unfold quite differently, depending on who you retain as your mediator-arbitrator and the issues which are in dispute.
You need to decide the professional qualifications, skills and experience you want your mediator-arbitrator to have in order to provide your family with the appropriate process and resolution of issues. I have a legal background. You may prefer that your mediator-arbitrator have a legal background, or you may prefer that your mediator-arbitrator have a mental health or a financial background.
In Ontario, the mediation-arbitration process is regulated by the Arbitration Act, 1991, Ontario Regulation 134/07 and the Ministry of the Attorney General, through its website, all of which impose obligations on mediator-arbitrators about mandatory content of mediation-arbitration contracts, client screening and their own training.
My Mediation-Arbitration Process
Mandatory Training Required by the Government of Ontario
I have taken the training which the Government of Ontario requires all family arbitrators to have. I also host workshops which deliver the required training. Accordingly, I am intimately familiar with the legal requirements which governs family arbitration proceedings, including family mediation-arbitration proceedings.
Before the mediation-arbitration process begins, I will meet with each of you separately for an intake meeting. During the intake meeting, I will ask you for information about yourself, your family and the issues in dispute. I will also screen you for suitability for mediation-arbitration. Screening is required by law.
Before the mediation-arbitration process begins, you will need to sign a mediation-arbitration contract which defines the issues which are in dispute between you. You may address all of the issues which flow from a separation in a mediation-arbitration process, including parenting issues, child support, spousal support, security for support obligations, issues relating to health and dental coverage for the family, financial disclosure and property issues.
A mediation-arbitration contract is an important legal document which defines many significant issues, including the following:
it names your mediator-arbitrator and defines their professional qualifications;
it confirms that your mediator-arbitrator has the training required by the Government of Ontario and is therefore competent to take on the role as your mediator-arbitrator;
it contains the certificates of independent legal advice required by the Government of Ontario;
it confirms that each of you has been separately screened for suitability for the mediation-arbitration process and that the mediator-arbitrator has considered the screening results in their decision to proceed with the mediation-arbitration process;
it defines how the mediation-arbitration process will unfold at a practical level;
it defines the fees that the mediator-arbitrator will charge you for mediation and arbitration services and how they will be paid;
it defines the specific legal issues about which the arbitrator has the authority to make decisions if you are not able to negotiate an agreement during the mediation phase of the process; and
it defines your appeal rights if you strongly disagree with the arbitrator’s decision.
Mandatory Independent Legal Advice
Before you sign the mediation-arbitration contract, you are required by law to receive independent legal advice. Your lawyers will need to sign certificates which confirm that you have each received independent legal advice. By law, the certificates must be attached to the mediation-arbitration contract.
You are not obliged to have a lawyer represent you during the mediation-arbitration process, however, you may wish to do so.
After the mediation-arbitration contract has been signed, either party or the mediator may decide that there is no point in continuing discussions in mediation because there is no realistic possibility of a settlement being reached. Neither party may, however, unilaterally withdraw from the arbitration phase of the process. The arbitration will proceed unless an agreement is reached, both parties withdraw from the entire process on consent or I terminate the process, which only occurs in highly unusual circumstances.
Role of Lawyers in the Mediation-Arbitration Process
Your lawyer may take on any of the following roles in your mediation-arbitration process:
Your lawyer may provide you with independent legal advice about the mediation-arbitration process and sign the certificate of independent legal advice.
Your lawyer may attend the mediation session(s) with you to guide you through the process and provide you with ongoing legal advice about proposed terms of settlement, as they are discussed.
Your lawyer may represent you in the arbitration phase of the process by preparing your submissions for you and if an oral hearing takes place, your lawyer may represent you at the hearing.
The first phase of any mediation-arbitration process is the mediation phase. During that phase, I will meet with you, either together or separately, to facilitate your discussions about all of the issues which are in dispute. I will help you brainstorm about potential resolutions in an effort to bridge your thinking about how issues should ultimately be resolved.
If you agree to a resolution, I will prepare the necessary agreement for you to review and sign after you have the opportunity to receive independent legal advice about the terms.
If you are unable to resolve your disputes through mediated discussions, the outstanding disputes will be arbitrated. During the arbitration phase, my role changes from that of a facilitator, who guides your discussions, to that of a decision-maker. As the arbitrator, it is my responsibility to review the evidence which each of you provides to me, consider it and make a decision about how the specific legal issues should be resolved given the circumstances of your family.
The arbitration phase of my mediation-arbitration process always takes place on a different day than the mediation phase.
After the mediation phase of the process has been terminated, you or your lawyers will have the opportunity to participate in a pre-arbitration conference to discuss how, when and where the arbitration will take place. There are many options available and we will choose the best alternative for your family.
You will both have the opportunity to provide me with a summary of the facts and evidence that you believe are relevant to the legal outcome you are seeking. I will decide, with input from both of you, how formal the arbitration process should be and how you should deliver your evidence to me. For example, you may send me a summary of your evidence by e-mail to address issues which are relatively narrow and straight-forward. If the issues are more complicated, however, you will be required to provide me with sworn evidence in the form of more formal statements or, you may be required to present your evidence orally.
You will always have the opportunity to respond to the other party’s evidence within a pre-determined period of time.
After I have reviewed and considered the relevant evidence, I will make a decision and provide you with an award which reflects a summary of the evidence, my decision and the reasons for it.