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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 04-23-2013, 10:46 AM
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SomeGuy SomeGuy is offline
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Default Arbitration ??

I've done searches (both on fourm and Ontario Family Law web site) and am still a little fuzzy on the concept of arbitration.

My fundamental question is how "binding" is Arbitration? I know the SC is just a judges opinion and unless both parties buy into the process, it is pretty much useless.

However how about Arbitration as an out-of-court settlement route? If I understand correctly, we would put forth our "case", the arbitrator makes rulings, then I need to turn them into court orders?? Is this correct?

Any direct experiences with this route? Does the case preparation have to be as extensive as court?

Thanks for any info....
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Old 04-23-2013, 02:28 PM
frustratedwithex frustratedwithex is offline
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I am not in Ontario, so I'm not sure if the process is the same.

Ex. and I had signed a med/arb agreement. Arbitration would be binding. For me, this was important. I was not going to go through all of this and then have to start again. Binding arbitration meant we had to accept the arbitrators decisions because they would become court orders.

We mediated for some time and could only agree on division of property. Once arbitration was asked for, the mediator became the arbitrator.

She set out the issues that still needed to be settled and what would be required, strict time-lines and an expected date for a ruling to be made. I believe this followed the Arbitration act.

We exchanged current financial information, affidavits, responses to affidavits and briefs. This process took about 4 months. We both had lawyers. For me it was expensive.

Although my ex. had a lawyer, he used him on a limited bases. My ex. wrote and prepared all submissions, affidavits, responses and briefs, and his lawyer supplied the stamp and service of documents. Briefs contained relevant case law and appropriate arguments supporting our respective positions.

One of the consequences of my ex. not having lawyer input, was the irrelevant drivel in his affidavit. He wrote pages of stuff that had nothing to do with the legally. Just perceptions and feelings about the relationship. Definitely needed editing.

The problem with this is the arbitrator has to read it and comment on it. This takes time and money.

The arbitrator had also said that questioning with a court reporter may be necessary if one of us required it. Lawyers would make this decision each time something was submitted.

After we exchanged financials, lawyers decided if there was information missing and wanted to question the other party. After affidavits were submitted, lawyers decided if there was something in the affidavit that needed questioning. After the briefs were submitted, lawyers decided if there was something that needed to be questioned.

Fortunately, we did not require any questioning at all. But from what I understand, if one of us had asked for the questioning, the other party could not refuse to take part. This could have become much more expensive that it was.

Quote:
Any direct experiences with this route? Does the case preparation have to be as extensive as court?
To answer your question, maybe.

Your lawyer or you, will have to do research and preparation for the briefs and/or questioning.

Your lawyer will not have to prepare for many days of court, but will have to prepare for the submissions.
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Old 04-23-2013, 05:32 PM
stripes stripes is offline
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Quick questions coming out of this - in our divorce judgment (which I wrote, self-represented), I wrote that we were obligated to go to mediation to attempt to resolve disputes before going the court route, and that "agreements reached in mediation shall be considered binding by both parties" (had problems with mediation before where ex would agree to something and then announce he would no longer abide by the agreement because he didn't consider himself bound). I'm wondering if I should have said arbitration rather than mediation, i.e. if mediation is by definition non-binding. Not a big deal one way or the other at the moment, just wondering if I should've worded things differently.
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Old 04-24-2013, 06:44 PM
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Thanks Frustrated for your very helpful answer...

Stripes... I also had mediation in my separation agreement... But since she's now disputing that agreement, I doubt my mediation clause would have helped
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