Each alternative dispute resolution (“ADR”) process has its advantages and disadvantages. Mediation allows parties to create their own solution to a dispute; however, there is no certainty that the dispute will be resolved. Arbitration provides a final resolution of the dispute; however, the parties have no input into creating the solution. Mediation-arbitration (“med-arb”) amalgamates the two processes and provides disputants with the “best of both worlds.” ² Med-arb is the most controversial ADR option. The debate regarding the pros and cons of med-arb has been ongoing for many years, with strong proponents on either side. The pros and cons of med-arb often depend on what lens one looks through; what one party sees as a strength in the process, another party sees as its greatest flaw. ³

Clients, counsel, judges and academics all have different perspectives and as a result, see different risks or benefits of the med-arb process. Some people see the rate of settlement, client satisfaction, impact on family harmony, and the reduction of conflict as the key criteria. Others, who take a more procedural approach, emphasize the risks to natural justice and procedural fairness and believe those risks outweigh the benefits. 

Regardless, in choosing any dispute resolution process, it is most important that the parties involved in the dispute make an informed decision as to which dispute resolution option is best for them. ⁴ The choice can be made only after each party has been fully advised of the pros and cons of each ADR process. In BC, informing a disputant of their ADR options is now a fundamental responsibility of every family dispute resolution professional and is enshrined in legislation. ⁵ Ultimately, the choice of process is up to each party and will be based on what they believe will provide the best resolution of their dispute, considering the pros and cons associated with each option. No one ADR process is right for every situation. 

Lawyers and dispute resolution professionals need to be familiar with the advantages and disadvantages of each dispute resolution option, so they can cogently explain them to the parties and assist the parties in deciding which dispute resolution process is most appropriate for their dispute. Provided the benefits are seen as outweighing the risks, med-arb, in particular, is a viable dispute resolution process for many couples. If the risks cannot be addressed sufficiently, then the parties should consider other ADR options. 

Here is a summary of the advantages and disadvantages of med-arb: 

The debate regarding the pros and cons of med-arb has been ongoing for over fifty years. Proponents on each side of the debate have strong opinions for or against the process. Depending on which lens one looks through, many of the characteristics of med-arb that are seen as disadvantages by some are viewed as advantages by those in favour of it. It is unlikely that the debate will be resolved anytime soon. Regardless, an integral component of the med-arb process is that parties considering med-arb make an informed decision about the process and are fully informed of its advantages and disadvantages. With that done, med-arb is advantageous for many couples and will result in a resolution of their dispute.

1. This article is a summary of a portion of Carol Hickman’s LL.M. thesis completed in 2014. To request a full copy of this article contact: cwhstaff@quaylawcentre.com | ↩
2. Batson Baril, M. and Dickey, D., “Med-Arb: The Best of Both Worlds or Just a Limited ADR Option? | ↩
3. Ibid. | ↩
4. Ibid. | ↩
5. Section 8(2)(b) of the Family Law Act, S.C.B. 2011, c. 25 | ↩