Arbitration Hearing

[frustratedwithex]

I may be moving from mediation into an arbitration hearing.

My lawyer has suggested two ways to proceed.

1) An oral hearing. What is this?? What are the advantages/disadvantages?

2) File affidavits and briefs. Use these affidavits for questioning. The questions would be limited but all the questions and answers would be entered as evidence.

He is also asking me if I want to proceed with the traditional way of oral questioning. We would most likely use two days, one day for questioning stbx, and one day for questioning myself.

The benefit is that questions and answers can be used selectively by the party doing the questioning as evidence at trial (or arbitration).

Thanks in advance for any insight forum members may have.

 

[Tayken]

I may be moving from mediation into an arbitration hearing.

My lawyer has suggested two ways to proceed.

1) An oral hearing. What is this?? What are the advantages/disadvantages?

2) File affidavits and briefs. Use these affidavits for questioning. The questions would be limited but all the questions and answers would be entered as evidence.

He is also asking me if I want to proceed with the traditional way of oral questioning. We would most likely use two days, one day for questioning stbx, and one day for questioning myself.

The benefit is that questions and answers can be used selectively by the party doing the questioning as evidence at trial (or arbitration).

Thanks in advance for any insight forum members may have.

I would go viva voce (by voice) on the matter. Affidavit materials just lead to lies. It is easier to write a lie than tell it under oath.

My recommendation would be for both parties to go viva voce on the matter but, prior to cross examination both parties are to file factums 15 days prior to questioning preemptive on both parties and all evidence that will be used in questioning. (This means that the factums have to be filed at the same time on the same date.) Furthermore, there shall be no response to either parties factum submissions or removal of any evidence provided in the factum by either party.

9 time out of 10 once the high-conflicted party in the litigation gets handed the factum and it contains direct contradictions to the lies they are going to make... Things settle quite fast. You may not even have to waste money and time on questioning in the matter. They may just settle with you. (or you with them if you are the highly conflicted party in the matter).

Fly this by your solicitor and see what they think.

I would stick with traditional questioning with factums filed preemptive on both parties 15 days prior to questioning. Furthermore, there should be no more than 2 days between the questioning of the applicant and the respondent in the matter. This demonstrates that you can't go back and craft stories around responses etc.

Make everything as much as possible "preemptive" on both parties. Close the gate on them playing stupid games and crafting stories as they go.

Good Luck!
Tayken

 

[frustratedwithex]

This has been going on for 3 years, the last 6 months in mediation. In my opinion, mediation didn't move us forward, it moved us backwards. Issues I thought were settled before we started mediation, were reopened again. Issues that were settled during mediation, were discussed again at the last session.

I would go viva voce (by voice) on the matter. Affidavit materials just lead to lies. It is easier to write a lie than tell it under oath.

The thing is, stbx doesn't believe he is lying, and maybe he isn't. He seems to change his reasons for what he wants. He makes very compelling arguments each time he speaks.

If you were to ask me directly if he just told a lie, I would probably say no. He doesn't make up lies about me or what I do, he changes his story, makes up new reasons, makes up new stuff about himself.

Whether it is speaking or writing an affidavit, he is basically the same. Actually he can be worse in person, because he now has an audience and works really hard at convincing the mediator, (now arbitrator) of his position.

In the last 6 months, we have discussed everything in such detail, that I don't know what else would be "discovered" in questioning.

 

[Tayken]

This has been going on for 3 years, the last 6 months in mediation. In my opinion, mediation didn't move us forward, it moved us backwards. Issues I thought were settled before we started mediation, were reopened again. Issues that were settled during mediation, were discussed again at the last session.



The thing is, stbx doesn't believe he is lying, and maybe he isn't. He seems to change his reasons for what he wants. He makes very compelling arguments each time he speaks.

If you were to ask me directly if he just told a lie, I would probably say no. He doesn't make up lies about me or what I do, he changes his story, makes up new reasons, makes up new stuff about himself.

Whether it is speaking or writing an affidavit, he is basically the same. Actually he can be worse in person, because he now has an audience and works really hard at convincing the mediator, (now arbitrator) of his position.

In the last 6 months, we have discussed everything in such detail, that I don't know what else would be "discovered" in questioning.

Contradictions to the "stories" and/or "lies" that show an inconsistency enough to break the balance of probabilities. The reality is... What are you really arbitrating? (Custody and access? Asset division?)

Depending on the amount of discussion the mediator should have enough to arbitrate the matter without discovery through questioning. The reality is that the request for discovery may be that they have something they want to ask you under oath that will break your story.

Sword is sharp on both sides when doing questioning/cross examination and swings in all directions when used.

Good Luck!
Tayken

 

[wretchedotis]

I would go viva voce (by voice) on the matter. Affidavit materials just lead to lies. It is easier to write a lie than tell it under oath.

My recommendation would be for both parties to go viva voce on the matter but, prior to cross examination both parties are to file factums 15 days prior to questioning preemptive on both parties and all evidence that will be used in questioning. (This means that the factums have to be filed at the same time on the same date.) Furthermore, there shall be no response to either parties factum submissions or removal of any evidence provided in the factum by either party.

9 time out of 10 once the high-conflicted party in the litigation gets handed the factum and it contains direct contradictions to the lies they are going to make... Things settle quite fast. You may not even have to waste money and time on questioning in the matter. They may just settle with you. (or you with them if you are the highly conflicted party in the matter).

Fly this by your solicitor and see what they think.

I would stick with traditional questioning with factums filed preemptive on both parties 15 days prior to questioning. Furthermore, there should be no more than 2 days between the questioning of the applicant and the respondent in the matter. This demonstrates that you can't go back and craft stories around responses etc.

Make everything as much as possible "preemptive" on both parties. Close the gate on them playing stupid games and crafting stories as they go.

Good Luck!
Tayken

Tayken,

Regarding 'viva voce'...

I have trial approaching in the summer months - and the Judge at TMC indicated it would be viva voce.

Does this mean that any/all documents I have submitted using "request to admit' will not be available as evidence to me at trial?

Sorry to hijack the thread....

 

[Tayken]

Tayken,

Regarding 'viva voce'...

I have trial approaching in the summer months - and the Judge at TMC indicated it would be viva voce.

Does this mean that any/all documents I have submitted using "request to admit' will not be available as evidence to me at trial?

Sorry to hijack the thread....

Hard to say... It all depends on how the order is written. There should have been technical direction for factums and trial records from the TMC. The particulars should have been laid out in the TMC endorsement generally.

 

[frustratedwithex]

Contradictions to the "stories" and/or "lies" that show an inconsistency enough to break the balance of probabilities. The reality is... What are you really arbitrating? (Custody and access? Asset division?)

Good Luck!
Tayken

From my perspective, we are arbitrating support. Custody never was an issue. Property, (asset division), has been settled both before and now again during mediation. Although, during our most recent mediation, he expressed his displeasure again about the division. It was his proposal on division that I accepted.

My lawyers advice is, if ex wants to arbitrate the division he can request that it be included along with the issue of support, (both child and spousal).

Depending on the amount of discussion the mediator should have enough to arbitrate the matter without discovery through questioning. The reality is that the request for discovery may be that they have something they want to ask you under oath that will break your story.

Sword is sharp on both sides when doing questioning/cross examination and swings in all directions when used.

This is what I was thinking as well. If there was this much discussion, why would we need additional questioning? My lawyer has replied that we need to present enough evidence and information that supports my position and gives the arbitrator something to support their decision.

 

[frustratedwithex]

Arbitration process has started.

I need to resubmit financials, and affidavits, and lawyer needs to prepare briefs.

Ex. is asking to retain the right to an appeal, as well as an oral hearing after the affidavits and briefs are filed.

Why would he do this?

We just spent 6 months in mediation, everything that needed to be discussed, was (and more).

 

[wretchedotis]

Arbitration is usually final - for the appeal part I would guess he wants a chance to challange the outcome should it not be his deisred result.

 

[Tayken]

Arbitration is usually final - for the appeal part I would guess he wants a chance to challange the outcome should it not be his deisred result.

Arbitration isn't as "FINAL" as you may think. If there is an error in law then you can bring it on appeal in court. Again, the same requirements for an error in law stand with an appeal of an arbitrated decision.

People often bring arbitrated decisions on appeal in court as many arbitrators fail miserably to apply the appropriate case law (as do Custody and Access Evaluators quite often).

Again, they are asking for the right of appeal so they can take whatever results back into court easily. I say agree to it but, under the same Rules of the CoJA for any Appeal of an order in a civil matter.

Appeals are near impossible and you have to have a gross error in law to go on. So I wouldn't worry about any clause that specifically calls out that the Appeal can be made as it is already covered under the Arbitration Act.

Good Luck!
Tayken

 

[frustratedwithex]

Arbitration isn't as "FINAL" as you may think. If there is an error in law then you can bring it on appeal in court. Again, the same requirements for an error in law stand with an appeal of an arbitrated decision.

People often bring arbitrated decisions on appeal in court as many arbitrators fail miserably to apply the appropriate case law (as do Custody and Access Evaluators quite often).

Again, they are asking for the right of appeal so they can take whatever results back into court easily. I say agree to it but, under the same Rules of the CoJA for any Appeal of an order in a civil matter.

Appeals are near impossible and you have to have a gross error in law to go on. So I wouldn't worry about any clause that specifically calls out that the Appeal can be made as it is already covered under the Arbitration Act.

Good Luck!
Tayken

We agreed to binding arbitration.

Is asking to retain the right to appeal standard? Or is it because he thinks the arbitrator isn't going to rule the way he wants?

In reading over our med/arb agreement we, (together with lawyers present), checked off the box that states we can appeal in accordance with subsection 44 of the arbitration act.

But we did not check off the box stating we can appeal the award based on a question of law.

This is what ex is asking for, to appeal based on a question of law.

I say agree to it but, under the same Rules of the CoJA for any Appeal of an order in a civil matter.

Do I have to specifically ask for this? Do I need to have the rules for an appeal outlined now, before the arbitration begins?

Appeals are near impossible and you have to have a gross error in law to go on. So I wouldn't worry about any clause that specifically calls out that the Appeal can be made as it is already covered under the Arbitration Act.

How impossible? I don't think this is going to matter to stbx. Impossible or not, I think he is going to ask for an appeal. I believe, that whatever the decision is, he is not going to like it.

 

[momforever1956]

I signed a binding arbitration agreement. This was a decision made by counsel and myself as I wanted the process to end. We submitted our brief and so did my x with all the details.
We met with the arbitrator for about 30 minutes, then discussions took place with counsel in the arbitrator's office and within 5 hours it was all over.
Mediation is not binding and in a high conflict case there really is no point, it becomes he said, she said.
My lawyer in our very first meeting made it clear to me, to quote, " There is truth and there is proof and to be very honest with you, proof is all I am interested in."
It took 3 years of investigation, lots of professional fees and more sleepless nights, but in the end, the proof sealed the deal... I didnt get to take him for a bath, but for sure a good powerful shower.

 

[frustratedwithex]

I signed a binding arbitration agreement. This was a decision made by counsel and myself as I wanted the process to end. We submitted our brief and so did my x with all the details.

We met with the arbitrator for about 30 minutes, then discussions took place with counsel in the arbitrator's office and within 5 hours it was all over.

Mediation is not binding and in a high conflict case there really is no point, it becomes he said, she said.

My lawyer in our very first meeting made it clear to me, to quote, " There is truth and there is proof and to be very honest with you, proof is all I am interested in."

It took 3 years of investigation, lots of professional fees and more sleepless nights, but in the end, the proof sealed the deal... I didnt get to take him for a bath, but for sure a good powerful shower.

Did you mediate first, then move to arbitration?

Right now we have agreed to submit everything first and decide on an oral hearing after affidavits and briefs are submitted.

In my opinion there is nothing to prove. No hidden accounts, no misappropriation of funds, just straight across divide the numbers. This is strictly a support issue. Although ex may reopen property division again.

I do know that my lawyer needs to submit a brief that supports my position for support, as does ex. Stbx will need to prove his position for no support.

 

[momforever1956]

We signed what is called a med/ arb agreement. Mediation being open and arbitration being binding. We agreed to use the same High Profile Mediator/ Arbitrator, so basically it was mediation with the understanding if we did not agree on any point that the mediator suggested, he just took off one hat and put on the other. Needless to say, the knees were buckled and the agreement was signed, there was no point fighting it as the mediator was the arbitrator.

He basically had read our briefs, and there really wasnt much to discuss. We were addressing support issues as well as property. I wanted our MH to be valued as of separation date and the x wanted it valued present.
The med/ arb played no games was firm, clear and fair. As it turns out, he asked me why the house was in my name, I answered honestly and he told me he appreciated my honesty even though the house would now be valued at the higher amount (to my detriment), but in the end the deal was fair.
My support claims were proof based after years of asking for proper disclosure, so his income numbers were basically ignored.
Yes, it is taking a chance putting the power into one person's hands, but if you have the proper back up to your claims, the proof is in black and white.
I ultimately doubled my self-employed x's income (professional) and have a support determination that cananot be changed for 5 years. I also have the ability to go back to work and my support cannot be adjusted.
I strongly reccomend a well respected med/ arb. It was an expensive process but it ended in less than a day. Our med/ arb is a Family Lawyer and is a senior partner in his Law Firm.
As I have said before, I didnt get ALL that I felt I was entitled to, but the agreement was very fair.

 

[frustratedwithex]

Yes, we signed a med/arb agreement as well. We are using a well respected family law lawyer and senior partner.

We have not submitted any briefs so far. At the start of mediation, the mediator said they wanted to start fresh, and did not want to hear through lawyers what our positions were.

Trying to mediate over the last 6 months, going into mediation, I felt we were close on all issues. Both of our respective positions had changed over the last few years, using our formal offers as a base, I thought we had moved very close and going to court could be avoided if we could mediate instead.

I was wrong.

His crazy came out in a big way during mediation. I also think he would have had the same position in front of a judge.

Did you mediate and the arbitrate all in one sitting? Everything together took 5 hours?

What was expensive about your process?

 

[momforever1956]

We mediated and arbitrated (all the same session). The agreement went back and forth fixing up a few things, for example life insurance. We started at 11 am and by 5p.m. I left the med/arb offices with my lawyer and the agreement signed and sealed.
What was expensive was the fees that were paid in advance to the med/ arb.
It has to be paid in full 1 week before we met and he charged each party 3250 for the day.
On top of that were my lawyer(and assistant) and accountant(and assitant) fees. I figured each hour cost over 2000.

 

[frustratedwithex]

Thank you momforever1956 for all this information. I appreciate your responses.

You spent about $13,000 - $15,000?

I have surpassed that by far already, and I am guessing the arbitration part will be at least $10,000. The last affidavit I had filed cost about $3,200. It was just a straight affidavit, no response, no briefs.

At this point I don't think I could have spent any less had we gone to court.

 

[momforever1956]

That amount I mentioned was just for that day. I have been with lawyers and accountants for 3years---the amount of money spent is truly criminal, on the otherhand without the proof and the disclosure I sought there is no way I would have the amount of support and property that we agreed upon.
Maybe court would not have been more expensive if we went to court in the beginning, but until I got disclosure there was no point going to court.
I think or I believe, has no merit and no decisions can be based on I know. For a proper and fair settlement it has to be based on facts. I think in the end court would have been more expensive with all the forms that need to be done. It is a shame how this process works. I have to say though with a fair deal the anger and bitterness just vanished, and my only regret is that my x got away for so long with lies and deception. It all was disclosed in the end, so my support was based on true numbers but the costs to get those numbers ended up being my responsibility. I believe in court I would have been entitled to costs, as the med/ arb agreed that it was his lies that slowed downt this process.

 

[arabian]

In Alberta we have a JDR (Judicial Dispute Resolution) which can either be binding or non-binding. In my case we opted for binding. Lawyers submitted binders of info 30 days in advance. We met in a conference room in the courthouse with judge and at the end of the day we were divorced. Totally recommend the process. No one can drag their new boyfriend/girlfriend into the process and if you choose binding then there is no appeal (unless of course there is an error made in law). Judge controls the day and no one gets to hog the discussion.

I think this mirrors your binding arbitration process in Ontario. Keeps the drama and eliminates histrionics and grandstanding by lawyers.

 

[frustratedwithex]

In Alberta we have a JDR (Judicial Dispute Resolution) which can either be binding or non-binding. .

I couldn't get agreement for this.

Dates for JDR are hard to come by. At the time, (late last year), the first available date was for March or later, of this year.

Ex. wanted this done and settled by last christmas, and at the very latest, Feb. of this year.

Now its almost the end of May, arbitration ruling will be end of September. So I find his reasoning very amusing, because he just doesn't shut up, talks endlessly, blah, blah, blah, loves to hear himself and hear how intelligent he is.

Did I mention I'm frustrated!