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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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  #1  
Old 06-01-2016, 03:40 PM
RebocOllie RebocOllie is offline
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Default Can a judge order arbitration

Hi
I'm new to this forum. I don't want to go into a bunch of detail that no one is really interested in. I just want to ask a question.

I am the respondent in our case. Over the course of 4 months I have made 2 Offers to Settle. The second one basically offered her almost everything she wanted. It was very generous. I just want this over with. There was absolutely silence from her and her lawyer and the date for response came and went. I honestly don't know what else to offer.

Here is my question: Can a motion be made to the judge to order arbitration? (I don't think so but am glad to be corrected if I am wrong.) Alternatively can I ask for an order that forces her to respond to my offers?

Thanks in advance.
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Old 06-01-2016, 06:38 PM
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arabian arabian is offline
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I don't think a judge would order arbitration simply because (if worse came to worse) the two of you could self-represent and go to trial through regular court process.

I believe that "binding" arbitration requires that two people make a commitment that the arbitrator's decision is, indeed, binding. Non-binding arbitration IMO is merely expensive case conferencing.

She is under no obligation to respond to your offers. Usually well-written offers have a respond-by date in them or they become null and void at the commencement of trial. Offer to settle would come into play if/when determining costs after trial.

Edit - if the date came and went for her to accept offer - you have your answer.

So you now have to measure your offer with the cost of going to trial. You may have to up your offer to get her to bite.
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Old 06-01-2016, 06:45 PM
RebocOllie RebocOllie is offline
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Thank you Arabian for your considered reply. The problem is, in short , there is nothing else to offer. I'm pretty much willing to walk away from half a million dollars worth of assets just to get my life back. The problem is she is convinced there is more. She's wrong.

I do think I have come up with a possible solution though. I have drafted a letter asking her to respond and if she does not that I will be forced to go to trial. Under family court rules if she ends up with a settlement less than what I have of offered her she will likely be made to pay trial costs.


I am hoping that will be incentive enough to begin serious negotiations.

It would be grueling and emotionally draining but I don't really have anything to lose financially.

Thanks again.
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Old 06-01-2016, 07:49 PM
RebocOllie RebocOllie is offline
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That last line should have read "It would be grueling and emotionally draining but I don't really have anything to lose financially by going to trial."
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Old 06-01-2016, 08:20 PM
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I am sure it must be very disappointing to be unable to resolve things amicably. Perhaps in time, after facing thousands of dollars more legal costs through case conference circus, she will reconsider.

You are probably wasting pen and ink with your letter. I'd just proceed to move towards trial. That, in itself, will send the message that you are serious and I expect her lawyers will advise her the same. She will be likely then be pressed by her lawyers to come up with a substantial retainer for trial as I'm sure the lawyers aren't going to start the preparations without some consideration towards their bill. Be aware, however, that sometimes people in your wife's situation will have lawyers proceed with a motion to advance some money from joint assets so that she can be on even footing wrt her right for legal representation - this is assuming that she has no money of her own or ability to borrow to pay lawyers. Funding a trial can be a very big issue and reason why few people actually get that far.

Much to consider.
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Old 06-02-2016, 10:24 AM
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Quote:
Originally Posted by RebocOllie View Post
Here is my question: Can a motion be made to the judge to order arbitration?
If there is a prior agreement in place that an issue should be taken to arbitration then yes a judge can order the parties to arbitration and even order an arbitrator. But, if there is no agreement in place between the parties then no they judge cannot order the matter to arbitration.
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Old 06-02-2016, 10:31 AM
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I am not sure that I understand what the problem is here.

Quote:
Originally Posted by RebocOllie View Post
Here is my question: Can a motion be made to the judge to order arbitration?
How is a trial different than arbitration? The trial is your arbitration. What is it about arbitration that you find so appealing? Is it the speed? What is the rush?

Anyhow, the point is moot, a judge will not order arbitration. They order trials.

Quote:
Alternatively can I ask for an order that forces her to respond to my offers?
Why does she have to respond? You have made your offer, it was not accepted, now you go to trial. If you do better than your offer, you will get a good chunk of your lawyer fees back.

Make sure the offer remains open until the trial, or you don't get as much money back.

Quote:
Over the course of 4 months I have made 2 Offers to Settle. The second one basically offered her almost everything she wanted. It was very generous. I just want this over with. There was absolutely silence from her and her lawyer and the date for response came and went. I honestly don't know what else to offer.
If you have offered the most that you can, and the other side doesn't accept, then you go to trial. Perhaps you will do better than your offers. If you offer too much and the other side doesn't accept, sometimes that is a good thing.

I don't see what is so wonderful about arbitration that you won't get with the trial.
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Old 06-02-2016, 10:53 AM
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I don't see what is so wonderful about arbitration that you won't get with the trial.
From a scheduling perspective it can be "faster". But, your points are all valid as they are very often no different than a trial. You are just paying a private service to make the process go faster.

The other benefit is that some times you can convince the arbitrator to do it as a panel and then have a custody expert as part of the panel for the arbitration. So more eyes are working on the final order etc... But, this is freaking expensive.
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Old 06-02-2016, 02:20 PM
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Arbitration generally takes much less time as there are no witnesses testimony unless you want to do what Tayken has mentioned above. A 1 or 2 day Arbitration is considerably less expensive than a 10 - 12 day trial.
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Old 06-06-2016, 11:19 AM
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Quote:
Originally Posted by arabian View Post
Arbitration generally takes much less time as there are no witnesses testimony unless you want to do what Tayken has mentioned above. A 1 or 2 day Arbitration is considerably less expensive than a 10 - 12 day trial.
Generally speaking if it takes 10-12 days in trial it will take that long in Arbitration. If you have two warring parties arbitration will take just as long and they will want witnesses herd etc. The other thing Arbitration is used for is for rich people to keep their business out of CanLII. Many very wealthy people will opt for Arbitration to keep their financial statements and other information out of the public courts.
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