Have your dispute decided out of Court
in a private, tailored, binding arbitration.
Arbitration in Alberta is a voluntary, private process where spouses choose an acceptable, knowledgeable, independent and neutral third party expert, like an experienced family lawyer, to act as their judge and decide their case.
You can participate in it with or without a lawyer. You and your spouse will each present your evidence and legal argument. The arbitrator will then make a binding decision that you both have to follow.
The structure and details of the arbitration are decided by the parties and the arbitrator. If the parties cannot agree, the arbitrator will set the process. The terms of the arbitration are usually set out in the arbitration agreement, which the parties sign before it starts.
Arbitration is different from mediation.
Mediation and arbitration are both private, voluntary processes, outside of Court, but otherwise, they are very different. Arbitration is binding and mediation is non-binding. Mediation is a facilitated discussion between you and your spouse in an effort to reach an agreement while in arbitration, you and your spouse present your case and the arbitrator makes a decision. Mediators and arbitrators are neutral experts who are selected by you and your spouse. Their roles are very different. Mediators try to help parties reach an agreement and arbitrators decide legal issues, based on the law.
There are many benefits of arbitration.
Arbitration can settle the majority of disputes between separated spouses, with significant benefits. Some of those benefits are:
Arbitration is often faster.
Disputes settled in court depend on the court’s availability and can often take many months or even years. Arbitration allows parties to resolve their matter faster than they would in court because the arbitrator usually has better availability. Also, the process can be designed by the parties and arbitrator to be streamlined and proportionate to the issues, instead of having to use a set court format and rules.
Arbitration uses an expert.
Judges are experts in the law; they may or may not have particular expertise in family law. Parties typically choose arbitrators for their expertise in family law.
Arbitration is private and confidential.
Courts are public forums and the information about your personal life, including your children and finances, becomes public knowledge in court. This can be especially challenging for business owners because their business information may be available to competitors and others.
Arbitration is private and parties must keep the proceedings confidential.
Arbitration can cost less.
It can be significantly less costly than going to court. Costs can be managed by designing a streamlined process to deal with issues faster and more efficiently.
Arbitration can help manage conflict.
Even if you and your spouse disagree on the legal issues, you can still agree on how you are going to solve them, based on what is best for your family. Choosing a private, less formal, more dignified process allows spouses to avoid the escalating conflict of a court battle. This is especially important if the case involves children.
For all these reasons, we encourage disputing parties to consider arbitration before deciding to litigate.
The Process
The arbitration process begins with you and your spouse or your lawyers meeting with your arbitrator to set the scope of the arbitration, the dates for hearings, and deadlines for submitting documents.
Hearings may be formal, in a manner similar to a court hearing, or informal, whichever you choose. You may represent yourself or hire a lawyer. At the hearings, both parties have the opportunity to present evidence and arguments and to cross-examine witnesses.
The arbitrator, as the hearer of fact, then decides, on the basis of the evidence presented, the rights and wrongs of the dispute and makes an award after the conclusion of the hearings. This award binds both parties. The court enforces the award if the parties involved do not follow it.
The process is simple.
You do not have to be a lawyer or know a great deal about the law to take a dispute to arbitration. Each party should present its case as clearly and logically as possible. Bring the best evidence you have. For example, a copy of any contracts involved or witnesses who have firsthand knowledge of the facts, and the arbitrator will tell the parties if the evidence is acceptable or not.
The parties each pay half the costs of arbitration, which include the arbitrator’s fees and disbursements. The arbitrator then varies the final costs based on the success of each party.
An award is the arbitrator’s decision. When the parties appoint the arbitrator, they can state in their agreement the time frame in which the award must be made. An arbitrator’s decision is usually not rendered “on the spot” and it must be in writing.
If there is no agreement about the time for making the award and the Alberta Arbitration Act will set out the time frame for making an award.
FAQs
Here are the answers to some other common questions we receive about arbitration.
Q: How long is an arbitration?
Every family and case is different. The parties and the arbitrator set the process. The issues, evidence, and available resources determine the length. If the parties cannot agree on the length, the arbitrator will decide.
Generally speaking, arbitration is scheduled for 1 to 3 days.
Q: Where does arbitration happen?
It usually takes place at the arbitrator’s office. In some circumstances, it is done by video conference.
Q: What happens in arbitration?
The process begins with you and your spouse or your lawyers meeting with your arbitrator to set the scope of the arbitration, the dates for hearings, and deadlines for submitting documents.
Hearings may be formal, in a manner similar to a court hearing, or informal, whichever you choose. You may represent yourself or hire a lawyer. At the hearings, both parties have the opportunity to present evidence and arguments and to cross-examine witnesses.
The arbitrator, as the hearer of fact, then decides, on the basis of the evidence presented, the rights and wrongs of the dispute and makes an award after the conclusion of the hearings. This award binds both parties. The court enforces the award if the parties involved do not follow it.
Q: Is an arbitrator neutral?
An arbitrator is neutral. This means that they do not take either party’s side. They are not there to make arguments, convince or support either you or your spouse. The arbitrator cannot provide legal advice to you or your spouse. Their role is to listen to and decide your case, based on the law.
Q: Who pays for the arbitration?
The parties each pay half the costs, which include the arbitrator’s fees and disbursements. The arbitrator then varies the final costs based on the success of each party.
Q: Do I need to get legal advice?
It is a good idea for you and your spouse to each get independent legal advice before beginning arbitration. The lawyer that you get advice from can talk to you about whether proceeding with arbitration may be right for you.
Q: What happens at the end of an arbitration?
Once you and your spouse have made your case, the arbitrator issues their decision, which is called an Arbitration Award, and this Award can be enforced in court. Unless there are other things to deal with, it is over when the Arbitrator issues the Award.
Q: Can you end arbitration?
The only way to end an arbitration before it is over is for both parties to decide they no longer want to arbitrate with the arbitrator. Otherwise, one-party cannot end the process. If one party decides to stop participating, the arbitrator can make their decision anyway and the Award would be binding on both spouses.
Q: Do I need a lawyer to go to arbitration?
No, you and your spouses can go to arbitration with or without lawyers. Many people choose to have a lawyer represent them because it is a binding process. It is a good idea to get legal advice before arbitration if you decide to represent yourself.
Q: How do I prepare for arbitration?
If you have a lawyer, they will prepare your case for arbitration and if you represent yourself, you will be responsible for entering all relevant evidence, making all necessary legal arguments, and providing all applicable case law to the arbitrator.
You should present all evidence and arguments in an organized, easy to understand way.
Q: How do I get my questions answered?
If you have questions for your arbitrator, ask them as early on as possible. The arbitrator answers questions in a neutral way to both you and your spouse at the same time. An arbitrator will not talk to spouses separately.