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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 03-25-2014, 05:00 PM
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Hi,

My lawyer brought up the option of arbitration or going to court. Arbitration would be the cheaper and quicker option but it will also be binding and I will be stuck with the arbitrator's decision. With the court option I would be able to appeal if I don't like the decision.

Has anyone been through arbitration? How much input did you have during the process?

Thanks
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Old 03-25-2014, 05:59 PM
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Originally Posted by WhenWillItEnd View Post
Hi,

My lawyer brought up the option of arbitration or going to court. Arbitration would be the cheaper and quicker option but it will also be binding and I will be stuck with the arbitrator's decision. With the court option I would be able to appeal if I don't like the decision.

Has anyone been through arbitration? How much input did you have during the process?

Thanks
I was under the impression that you could only appeal a court decision if the Judge did not follow the law... not because you just didn't like it. I haven't been to either, but from what I have heard, the outcome is basically the same, except you save money with arbitration. Just know, agreements are never set in stone and can be opened up for a change in circumstances and such.

What issue are you worried about, that you are thinking court over arbitration?
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Old 03-25-2014, 06:20 PM
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You can (win) an appeal:
-Judge didn't follow the law
-Material Error in assessing facts (should jump off the page)
-Bias
-clear error in the judgement

Personally, having recourse to an appeal is a sword over the judge's head to act appropriately.
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Old 03-25-2014, 06:48 PM
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Originally Posted by Links17 View Post
You can (win) an appeal:
-Judge didn't follow the law
-Material Error in assessing facts (should jump off the page)
-Bias
-clear error in the judgement

Personally, having recourse to an appeal is a sword over the judge's head to act appropriately.
Yes but none of those point to what the OP was getting at. From what I am understanding, the OP thinks court may be the better option because he will be able to appeal if he doesn't like the decision. Which is not true. He can only appeal and win an appeal for certain reasons. I am sure he could appeal just because he didn't like the decision but he certainly won't get far with that plea.
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Old 03-25-2014, 07:25 PM
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You have a decision (ruling, order whatever you want to call it). You can get it through trial or you can go to arbitration. With arbitration the same rules apply - you can apply to review the order for same reasons as had you gone to trial (material change of circumstances). My ex is a perfect example of that. He has unsuccessfully taken me to court 7 times since the divorce judgement. Why? Because he can. He could and would have done this even had we gone through a trial for our divorce.

With arbitration there are no recordings, no transcript of proceedings and no witnesses. No court-room drama so-to-speak.
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Old 03-25-2014, 07:39 PM
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Originally Posted by arabian View Post
You have a decision (ruling, order whatever you want to call it). You can get it through trial or you can go to arbitration. With arbitration the same rules apply - you can apply to review the order for same reasons as had you gone to trial (material change of circumstances). My ex is a perfect example of that. He has unsuccessfully taken me to court 7 times since the divorce judgement. Why? Because he can. He could and would have done this even had we gone through a trial for our divorce.

With arbitration there are no recordings, no transcript of proceedings and no witnesses. No court-room drama so-to-speak.
Was just wondering about who gets stuck with costs when arbitration is unsuccessful? I know that if a trial decision is appealed and lost, the plaintiff gets to pay the bill.
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Old 03-25-2014, 07:42 PM
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When you go to binding arbitration each party agrees to pay their own individual costs. There is no such thing as "unsuccessful" binding arbitration because the arbitrator's ruling is final.

Prior to binding arbitration each party must agree that the arbitrator's decision is final.

I wouldn't waste my time with non-binding arbitration. What's the point if both parties can walk away from the table? You'd be better off with an equally useless, but less expensive, 4-way meeting, in my opinion.
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Old 03-25-2014, 10:51 PM
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A few things that I was told about arbitration. You must pay for your lawyers time and must pay for half of the arbitrators time. The decision is not "on public record" so there is more confidentiality regarding private issues. IF you want the decision of the arbitrator turned into an order you will have an additional step. The Family Law rules now address this. I found the below off of the government website:

"If you are directly involved in a family arbitration you may ask a court to enforce any of the terms of the arbitration award (the decision of the arbitrator). These cases can only be brought in the Superior Court of Justice (which includes the Superior Court of Justice, Family Court). Going to court may be necessary in order to register support payments with the Family Responsibility Office or to enforce another part of the award.

The process to follow will depend on whether or not you or the other party have already started a case in family court.

If a case has not already been started:

You or the other party can file a Form 32.1 Request to Enforce a Family Arbitration Awardin the court to enforce the terms of the arbitration award. The procedure for these requests is set out in rule 32.1 of the Family Law Rules. "

If you go the route of arbitration make sure that you carefully select your arbitrator. When I phoned many of the mediator/arbitrators that I was considering...many of them had only arbitrated a few cases (ie. less than 5). I think that it is more common to have experience in mediation.

I agree with all of the above points on an "appeal". Appealing is expensive and difficult to win. In the end, I took the court route. I'm not sure if it was the right choice. I think that going thru the court system takes more time for certain. One thing was that I ran out of money due to legal fees...so I could continue with the court process on my own. Most arbitrators will not allow you to represent yourself. You must have counsel present. Just some things to consider.
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Old 03-25-2014, 11:04 PM
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Just to add....apparently you can appeal a family arbitration award...but there seem to be some pretty strict time guidelines. I've cut and pasted from the ministry website below.

"You can appeal a family arbitration award (decision of the arbitrator) if you believe the arbitrator did not apply the law properly. In most cases, if you want to appeal the arbitration award you must bring a motion in the Superior Court of Justice or the Superior Court of Justice Family Court Branch to first get permission (called ďleaveĒ) to appeal the award.

The Family Law Rules require that a motion for leave to appeal an arbitration award must be brought within 15 days of when the award was made. If permission is granted, you must then file a Notice of Appeal within 7 days.

If you and the other party agreed before going to arbitration that either side could appeal the award without having to get the courtís permission to appeal, then you will not need to bring a motion for leave to appeal, and your Notice of Appeal must be filed within 30 days of the award. The award must be appealed within 7 days if it is a temporary decision. You and the other party could also agree that an appeal can be brought because the arbitrator made factual errors. Rule 38 of the Family Law Rules sets out the specific requirements for the documents that must be filed and the timelines that must be followed to appeal of a family arbitration award.

In addition, you or the other party can apply to set the award aside the award for other reasons. For example you could apply to set aside where the arbitrator didnít following the right procedures or didnít give each person a chance to present their case. A request to set aside must be started within 30 days of the award by filing Form 8: Application (General) with the court. Section 46 of the Arbitration Act, 1991 and Rule 8 of the Family Law Rules apply to applications to set aside an arbitration award."
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Old 03-25-2014, 11:09 PM
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Last note: you can be ordered to pay costs thru arbitration. See below:

"Arbitrators have the power to order one of the parties to pay part of the legal costs of the other. Arbitrators should use the same rules as the courts in making this kind of decision, unless the parties agree otherwise."

Taken from website:
The cost of family arbitration - Ministry of the Attorney General
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