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  • Arbitration - Good or not?

    I have a question.

    Does anyone have gone through the process of arbitration?

    I am asking as my lawyer had suggested that I go that way. I want it over once and for all and I know with my STBX it will take forever with the Court process.

    Any comments? Any experiments?

    Thanks

  • #2
    To me it an arbitrator seems like a judge, except that you pay him/her.
    Since it is a binding decision, the same legal processes/principles should apply to protect both parties. Which means you should not see this as a way to shortcut proper legal process to reduce cost.

    I have not gone thru it though, so that's just my impression.

    Comment


    • #3
      Arbitration is like court except:

      1) You pay the judge
      2) Your case isn't published on Canlii
      3) You can get a bonus trial if one of you litigates against the arbiter's ruling
      4) It is potentially slightly faster

      As far as I can tell, the level of bias against fathers remains relatively unchanged between the two options.

      Arbitration would be good for the McCain's. For us regular shmoes, I don't see the point.

      Comment


      • #4
        Originally posted by mafia007 View Post
        I have a question.

        Does anyone have gone through the process of arbitration?

        I am asking as my lawyer had suggested that I go that way. I want it over once and for all and I know with my STBX it will take forever with the Court process.

        Any comments? Any experiments?

        Thanks
        Having read some of your story your situation (as you have described it) is too complex to be addressed in arbitration in my humble opinion. You would want the formality of a trial before a judge to resolve your custody and access dispute. (Again, as you have described your situation.)

        Comment


        • #5
          My 30 year marriage ended with binding arbitration (JDR). Took a total of 9 months from date I filed divorce. We did not have child custody matters to deal with. This was done in Alberta. Arbitrator was a senior judge and we only had to pay our own respective lawyers. Took one day. Judge led the process. My lawyer was extremely well prepared and we had a 5' high cart full of documents. I think binding arbitration is a great process if child custody matters have been settled.

          Comment


          • #6
            On the face of it, I would say no unless there is a specific circumstance.

            Following the regular court procedures gives you civil rights etc... appeals etc...

            Do you have that avenue with arbitration?

            Everything is often about check and balances.... I am not sure arbitration has as many as the legal system (which already is based so much on the discretion of the judge).

            Comment


            • #7
              I went the arbitration route and while it does tend to get things over with "reasonably" quickly and with "less" lawyer bills, it didn't really have a fair outcome for me. Our arbitrator was a family law lawyer and was totally unwilling to move from what age-old biases exist in the family law courts today. It was frustrating to say the least but did get things over with more quickly.

              Comment


              • #8
                Many people crave the Hollywood courtroom drama and simply want someone, preferably a judge, to tell them that their ex is wrong and they are right. My ex expressed his displeasure (by taking me to court for 6 years) of the arbitrator's final decree. For the most part, we both agreed to the final decision. He had every opportunity to express disagreement (and was represented by competent legal counsel) but did not do so. My ex had 30 days to appeal the decision (as is the case with any ruling in family court). The numbers do not lie.

                Final Orders are no different than those received through trial. It's how you get there that makes the difference. I have to tell you that I am very pleased that details of our divorce is not on public record. No high-drama, no smoking gun, no biased witness testimony eating up valuable court time.

                Comment


                • #9
                  Many thanks to you all. Your feedback is always a use for a good decision.

                  Comment


                  • #10
                    I would think arbitration is the way to go, cheaper, faster and more private. But what I don't understand is there are only a handful of arbitrators in Ontario and hundreds of lawyers or mediators. Even Tayken's favorite mysupportworker.com no longer does arbitration any more, only mediation.

                    Comment


                    • #11
                      In some provinces, binding arbitration is also called binding judicial dispute resolution (JDR). Arabian's case in Alberta was a JDR (right?). Just make sure that whatever you do is binding - otherwise you might as well save your time and money and go straight to court.

                      Comment


                      • #12
                        Correct - my case was a binding JDR.

                        Correct - anything other than "binding" is a waste of time/money.

                        In my situation, submission had to be sent in to the JDR judge 30 days prior to the hearing. Date was set up 6 months in advance so everyone had plenty of time to prepare. Also, because it is with a judge one doesn't want to play usual tactics of adjourning. No witnesses.... facts only. After reading about all of the case conferences, mediation sessions, useless 4-way meetings that people go through I am left with a great feeling of relief that I didn't have to endure that nonsense. Although I've had my share of post-divorce useless appearances with judge - this is something anyone can go through (trial or arbitration) if their ex decides continuously to try to overturn the final divorce Order. I think a JDR cuts the trial costs. The downside, in my situation, is it obviously left my ex feeling fairly flush and enabled him to continuously take me to court. This may appeal to people who can't get over the divorce and who want to stay connected with their through litigation?

                        Comment


                        • #13
                          It's clear to me that because of custody issues, my case is to complex for arbitration. She wants me to be a "Visitor" to our children. Also, all the other outstanding items are an issue because she makes it being an issue. I want a fair 50/50 settlement but she wants an unfair 85% settlement. I have a higher income, a pension, benefits, I'm well insured (dead, I'm worth a million) and I already have a new life in a more than wonderful family. She has nothing of that to share (this is why she's greedy) and she was raised through a family full of hypocrites. She has good life insurance that I bought (good lord, I'll be beneficiary for the sake of the children). She wants to keep the house and buy my share at a very lower value than the appraisal.... this is obviously to much for a one day arbitration.

                          Comment


                          • #14
                            Originally posted by SuzieSunshine View Post
                            I would think arbitration is the way to go, cheaper, faster and more private. But what I don't understand is there are only a handful of arbitrators in Ontario and hundreds of lawyers or mediators. Even Tayken's favorite mysupportworker.com no longer does arbitration any more, only mediation.
                            Simple... Arbitration requires a firm understanding of the law and especially case law generally. Most people go to arbitration and sign contracts that the existing laws (CLRA, FLA, FLR, etc...) all apply. Most people also contract that the Arbitrator has to consider case law.

                            Why? Because you can appeal an arbitration in the public court. Many complex arbitrations just end up in the public court system - especially those dealing with custody and access.

                            The reason you don't see social workers engaging in Arbitration anymore is because they have no knowledge of law and even less knowledge in case law. So, would you want a social worker who has NO IDEA about the rules about habitual residential location deciding in a matter where a parent has actually left the jurisdiction? What do they know about the city defined boundaries that define school.

                            They may have an opinion about reasonable amount of time a kid should be in a car on the way to school but, they can't determine what constitutes abduction in accordance with Rule 22.(3) of the CLRA (ON) and how it doesn't alter the habitual location of the child.

                            For example, in LF32's situation I would never want an arbitrator involved in that matter. The jurisdictional challenges regarding the child's residence is so complex only a judge could interpret and apply the law correctly.

                            For financial matters and nothing to do with child custody and access... Arbitration is fine. Even for small things like holiday access schedule determinations are fine too. But, to determine custody and access of a child upon breakup I would never recommend anyone attend arbitration over court.

                            Good Luck!
                            Tayken

                            Comment


                            • #15
                              Originally posted by mafia007 View Post
                              this is obviously to much for a one day arbitration.
                              And 15 days of trial... Be prepared. You are going to need to find compromises too. Some times it is better to give up something you can replenish (money) later in life. You can buy yourself a 50/50 full joint custody settlement. That is how the vast majority of them are settled out of court. Children cannot be replaced but, with hard work and dedication you can replace money.

                              You should make an offer to settle that can't be severed where you give the other party in the matter a very big carrot to do the right thing when it comes to custody and access. You may have to "buy" the other party's emotions to make sure the right things are done for the children.

                              Give this article a read:

                              When Math People and Feelings People Negotiate - High Conflict Institute

                              Good Luck!
                              Tayken

                              Comment

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