This blog post was first published on the Riverdale Mediation website.
Family arbitration is often a good process choice for separating couples, but not always.
For instance, if there is a substantial power imbalance resulting from the inability of one client to retain legal counsel, court may be a better choice for the family where legal advice is often accessible. If one client has substantially more money than the other, arbitration could cause an injustice based on one client’s better ability to afford to pay a private arbitrator.
If there are vulnerable children who could be impacted by an arbitrator’s decision, and neither parent can afford to retain a lawyer for those children, it may be in the child’s best interest that a court resolve the dispute, where free resources are available to support families. If one client is unable to fully participate because they are afraid of the other person, the family may be better served in court where more resources are available to support both parties and the children. Or if the situation is one that cries out for judicial intervention, such as a question of public health, an arbitrator may be ethically obliged to recommend the matter be addressed in a publicly accountable court process.
As a result, under Ontario’s Arbitration Act, it is mandatory that all family arbitrators certify that both clients have been appropriately screened for power imbalances and domestic violence before they agree to act as the arbitrator.
And our experience has told us that taking the time to do this step right offers many benefits to the clients and counsel too.
Riverdale is often retained by family arbitrators to conduct Third Party Screening for their family arbitration process.
Both parties submit intake forms on our website, and then one of our team members will meet each party, privately and confidentially, for the purpose of assessing whether the matter is suitable for private adjudication.
We will prepare a Report after meeting both parties and submit it to the Arbitrator alone. Here are the steps we follow:
Steps in Screening for Family Arbitration
- Both clients complete the confidential Intake Form for Third Party Screening for Family Arbitration.
- Both clients sign the Consent to Third Party Screening.
- We will meet with each client, separately for a confidential meeting that will take between 1-2 hours. We will generally charge a flat rate of one hour of our time, unless the matter is very complex.
- We will provide the arbitrator, in confidence, a Confidential Screening Report. This report is NOT shared with the other party nor with counsel, and is intended to assist the arbitrator strictly in complying with their legal duty to assess whether the case is suitable for private adjudication.
If you have any questions, please contact us.