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Divorce in pandemic times: Arbitration as a potential answer

Tuesday, August 11, 2020 @ 12:50 PM | By Craig Neville


Craig Neville %>
Craig Neville
Closed or inaccessible courts during this pandemic prompted me to consider how we resolve matrimonial disputes generally, and, more specifically, how we can resolve them more effectively in these stressful and uncertain times.

Uncertainty creates anxiety, and when you couple the anxiety of unresolved matrimonial disputes with the unprecedented uncertainty of living in a COVID-19 world, not only do spouses suffer elevated stress, but their children experience it as well. Delay only exacerbates these variables.

The focus of this article is arbitration and its potential role in resolving disputes expeditiously and responsively to the expressed needs of parents, as well as the role of arbitration in the current climate where our court system is burdened by limitations and delays caused by the pandemic.

A move to alternative dispute resolution

With courts in Canada experiencing significant closures and family law clients basically “on hold” subject to emergency applications, the time is ripe for counsel and couples in matrimonial disputes to look at creative options they might not have previously considered.

Counsel who bring clients into my office for negotiation, mediation or to use the collaborative model are highly motivated to problem solve. They generally do a great job of helping clients overcome perceived “deal breakers” or “lines in the sand,” as they are often articulated by clients who are prepared to go to court “on principle.”

Those lingering deal breakers seldom involve a great deal of money, but most assuredly involve the willingness to pursue a court-based solution — and a great deal of prospective expense in legal fees to fight for those “principles.” (There is also the emotional and psychological cost associated with going to court, even if a party is self-represented and perceives there is no “cost” to going it alone. But that is a topic for another day.)

Spouses seldom separate at the same time, which I know sounds odd, but the end of a relationship often comes as a shock to one spouse or the other and the grieving process can’t be abridged. In these circumstances, having tailor-made options to address settlement issues is wise.

Arbitration

Arbitration provides an opportunity for opposing spouses to obtain a written and binding decision from an experienced family lawyer, with arbitration training, who is required to apply family law principles just as the court would. Arbitrations can focus on one or more issues arising from a dispute and, with certain exceptions, the awards are final and binding on both parties.

Counsel in British Columbia have, generally speaking, been reluctant to consider arbitration, although that is likely to change with recent amendments to the Family Law Act, which clarify and expand the role of arbitration in family dispute resolution.

The provincial government has become a huge fan of alternative dispute resolution (ADR) and loves the idea of keeping people out of court. Family lawyers are slowly coming to realize that not only government, but parents as well, want expedited resolution of family issues — especially in current times.

I have too often seen nearly successful mediations, collaborative processes or negotiations run aground on that one remaining issue that is beyond the creative skills of counsel, the parties or a mediator to resolve.

As noted above, spouses often spend an enormous amount both financially and emotionally to attempt resolution of their cases out of court. Too often, failure to conclude an agreement using ADR results in the threat of enormous additional legal expense and months of waiting for a trial. Don’t even try to calculate the emotional cost of waiting around for trial dates, particularly now, when access to courts has become very abridged. Uncertainty creates anxiety!

While arbitration can be built into the mediation process through a mediation/arbitration agreement, the other ADR options can simply fall by the wayside if they are not successful in producing an agreement on every issue.

Additionally, the court never hears about unsuccessful settlement efforts because those processes are confidential, so it can be very frustrating for spouses to have to go to court after sometimes lengthy efforts to settle when one parent or the other is less motivated to conclude an agreement. That lack of balance between the parties can create substantial inequities and a power imbalance when trying to conclude out of court settlements.

Arbitration could be compared to a surgical procedure (says the lawyer who knows nothing of emergency medicine) in that you can create a process to suit your unique presenting “problem” with anything from a simple Band-Aid to complex open-heart surgery or something in between.

Family arbitration is no different. Sometimes it may involve nothing more complicated than a quick conference call during which the parties identify the issue and the arbitrator goes away to write a decision (which is binding on the spouses).

There might be affidavits exchanged, written submissions from the lawyers or, in more complex scenarios, a full hearing with witnesses and cross-examination taking place at an agreed-upon time. The “open-heart surgery” option is rarely required, and even when it is, the process can be narrowly focused to save time, if not money as well.

There are many virtues to this range of options, including the fact they are tailor-made to the spouses’ needs, as opposed to the court’s needs.

  • Spouses get to choose the arbitrator;
  • Family arbitrators have extensive experience in dealing with family issues;
  • He or she is available the day they are booked;
  • The process can be tailor-made to the parties’ needs;
  • The process is confidential;
  • The date when the hearing is scheduled is rarely cancelled because the arbitrator has too many cases to hear that day; and
  • An agreement can be reached as to when a decision will be made, and that decision is confidential unless there is an appeal.

Other benefits

Most importantly, you don’t have to lose the often hard-won settlements on the many other issues you may have tentatively resolved in the ADR process leading up to the arbitration.

The cost of family law arbitration is typically less than going to court with lawyers, particularly where there are only one or two issues to be resolved. Arbitrations typically occur in the arbitrator’s board room or office, as opposed to the often-intimidating confines of the courthouse — what’s not to like?

It comes down to the fact that it is spouses’ lives and the lives of their children. Courts are there for a reason, but they should only be used as a last resort. If spouses can’t reach agreement on their own at least they can choose an arbitrator who is knowledgeable in family law, which generally includes knowledge of child development principles, mental health issues, property division, financial support and the true financial and emotional challenges of raising children.

We are living in unique times, and these times can foster creative and unique problem-solving options for stressful matrimonial disputes. Arbitration offers one more pathway through these complex and emotional circumstances.

Craig Neville is a B.C. family law lawyer with years of experience supporting families in transition. Neville’s approach focuses exclusively on alternative dispute resolution methods, including collaborative divorce, mediation/arbitration and parenting co-ordination.

Photo credit / Lyubchik Prokopchuk ISTOCKPHOTO.COM

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