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Mediation and Arbitration

Mediation

Mediation is a form of alternative dispute resolution where an impartial third party (the mediator) assists both parties in resolving their family law issues. The mediator does not have the authority to impose a settlement and cannot give either party legal advice or advocate on their behalf. Mediation is also a voluntary process. Both you and your spouse must agree to participate and either of you can choose to leave the process at any time.

Mediation emphasizes the role of the parties in reaching a resolution and is often most effective in low conflict disputes. It is not appropriate in cases where there has been violence or abuse. Before mediation begins, the parties will be required to go through a screening process. The mediator will speak with each of the parties separately in order to make sure mediation is appropriate.

The mediator is there to assist the parties in finding common ground and reaching a resolution themselves. Once a settlement has been reached the parties' lawyers turn the terms into a binding agreement or court order.

Mediation is less formal than court and, while there are costs involved, it is usually less expensive than the court process. It may also be faster than the traditional court process, but how long mediation takes will depend upon your particular situation.

If mediation does not work, the mediator may or may not be able to tell a court what was said during mediation, depending upon whether you and your spouse have chosen "open" or "closed" mediation. In open mediation, the mediator writes a full report on what happened during mediation and can include anything that he or she thinks is important, and that information is available to the court. In closed mediation, the mediator’s report will only indicate whether or not you were able to reach an agreement on any of the issues.

Arbitration

Arbitration is a form of alternative dispute resolution whereby both parties present evidence to an impartial third party (the arbitrator) to support their case and the outcome they want. After considering the evidence, the arbitrator makes a decision which is binding on all parties. Except in certain circumstances, the arbitrator’s decision is final and both parties must follow it.

Like mediation, arbitration is a voluntary process but is more formal and is similar to the court process. Both you and your spouse must agree to participate. The end result of a successful arbitration is an arbitral award that deals with the issues you have asked the arbitrator to decide.  An arbitrator can only decide issues related to custody and access, division of property and spousal and child support.

There is no set procedure for arbitration. Instead, it is up to the parties to decide who will be the arbitrator, what issues will be arbitrated and the conditions surrounding the arbitration. All family law arbitration must, however, follow Ontario law and must comply with any regulations made under the Arbitration Act.

Arbitration is a private process and parties are responsible for paying the arbitrator, usually at an hourly or daily rate. The benefits of arbitration over going to court are that the participants can choose the arbitrator and the process is confidential. It may also be faster than the court process depending upon your particular situation.  

Similar to mediation, before arbitration can take place, both you and your spouse must be screened separately for domestic violence and power imbalances to make sure that arbitration is appropriate.

With our thorough knowledge of substantive family law and our experience with alternative methods of dispute resolution and litigation, we will be able to help you decide if mediation and/or arbitration is an appropriate option for you.

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