The 2013 BC Family Law Act (FLA) codified the use of mediation and arbitration in family law disputes. Ten years on mediation flourishes while arbitration continues to flounder.

Resolution Out of Court Preferred — FLA, Part 2, Division 1

ADR Institute of Canada describes the goals of arbitration as a process that “enable parties involved in a dispute to reach a just, speedy, and cost-effective” resolution. Family litigation is plagued with court delays and judge shortages. Currently, there are over 140 lawyers qualified as Family Law Arbitrators in B.C. This far exceeds the number of available judges. However, in a 2016 survey of family arbitrators conducted by Victoria Mediation Services, less than 23% of the lawyers who responded had conducted any family arbitrations.

Since 2016, there have been a number of factors that have exacerbated access to family justice, including COVID, a continuing judge shortage, and the reality that criminal cases often take priority. Cost also continues to be a factor.

One of the major challenges has been a lack of understanding, both within the profession and the public at large. Further, the requirement under the FLA (s. 8) to assess family violence is a challenge for arbitrators.

Lawyers generally understand arbitration, but often have a challenge convincing skeptical clients that it is a better option. This includes the fear of being blamed if they recommend an arbitrator and the results not being favourable. However, the ability to select an arbitrator is positive. Judges are drawn from all areas of law, whereas family arbitrators are highly specialized and can post their resumés. This gives the parties an opportunity to select the right fit for their family.

Lawyers are required to fully advise clients of the of their Alternative Dispute Resolution (ADR) options and to encourage them to utilize these services before proceeding with litigation (FLA s. 4). Unfortunately, client’s often ask “why pay for ADR when you can have a judge for free.” What they do not appreciate are the limitations of the court calendar.

Family lawyers frequently complain about having their matters “stood down” while the court deals with other urgent matters, especially criminal. They also face repeated delays and adjournments. Arbitration is often faster, and the time savings can off-set the cost of hiring an arbitrator.

Meeting the requirements of FLA s. 8 creates a challenge for arbitrators, as family violence screening involves private communications. This can create a perception of bias. This process is streamlined in mediation/arbitration protocols but do present major challenges when the parties are self-represented litigants (SRL). In these situations, the arbitrator cannot rely on the counsel’s screening.

Arbitrations have advantages for SLR. During the pre-arbitration phase, the arbitrator can discuss with both parties what evidence will be required and what rules will be used at the arbitration. This is not a process available to a judge and does not create an apprehension of bias as they are joint sessions.

Summary

Family arbitration remains an underutilized option for improving access to justice. Lawyers can meet their legal obligation to encourage resolution out of court by utilizing this option independently or in combination with mediation.

Practice Tips:

• Speak to opposing counsel early in the dispute to look at the ADR options.
• Select a professional who best suits the dispute.
• When dealing with self-represented parties, encourage them to seek unbundled services to explain the process.
• Document only arbitrations are often very quick and effective instead of interim applications. Set the hearing date as the date all submissions are received.
• Set a timeline for the process, including a timeline for a decision. Decisions (called Awards) are written and usually within 14 days of the hearing. The time may need to be extended for longer hearings.