Today it is becoming more popular for families to choose arbitration as a viable alternative to contested litigation when resolving spousal disputes. This trend is due in part to the fact that many Canadian lawyers are choosing to include arbitration clauses in separation agreements. You may be wondering if this is something you should consider? This article will outline the pros and cons to choosing arbitration as your method of resolving spousal disputes.
Advantages of Arbitration
The appointment of the arbitrator is something that the parties are directly involved in. This is different from litigation, where you are simply assigned a judge and you get no say in the matter. In arbitration, the parties can review any potential arbitrator’s qualifications and expertise before making their decision, and in some cases more than one arbitrator may be appointed. Also, in complex cases, the arbitrator may be joined by an expert (such as an accountant or psychologist), so you can rest easy that your case is handled properly even if your arbitrator does not have expertise in a certain area.
Another advantage to arbitration lies in the fact that your issues will not be addressed in a formal courtroom, under the watchful eye of an intimidating judge, which can be rather frightening. Arbitration can take place in a myriad of different settings, based on the wishes and needs of the parties. If your situation is particularly contentious, your arbitration setting can follow quasi-courtroom-like formalities; the parties can file pleadings, witnesses can be examined and cross-examined, and the rules of evidence are honoured. On the other hand, if you prefer a more informal approach, your arbitration can take place with all parties seated at the same table, in an informal setting. This flexibility is very attractive for many parties, especially those who are opposed to the formalities of the courtroom.
Arbitration can also take place much quicker than litigation. If you choose litigation you must adhere to a formal process of pleadings, production of documents, and discovery, which is time consuming. You are also at the mercy of the court as to when your case will be reached, and your case could even be continued when it is finally reached, thus adding further delays. The arbitrator can negotiate a suitable time and place for the arbitration to take place, which can even be on a holiday, night, or weekend. Additionally, if a conflict arises, the arbitration can easily be rescheduled. Even complex cases can typically be arbitrated within a few weeks, whereas litigation typically takes at least eighteen months (not including appeals).
Parties choosing to arbitrate also enjoy more privacy; only the parties, their counsel, witnesses, and the arbitrator are typically present at the arbitration. On the other hand, in litigation the courts are open to the public and press, which raises a risk of embarrassing publicity.
The cost is another attractive benefit to arbitration. Costs of arbitration are generally more predictable than the costs of pursuing contested litigation. With arbitration, you can expect to pay your counsel, and split the cost of the arbitrator with the other party. If you choose litigation, however, the time expended by the lawyers and what you will be billed for is highly unpredictable.
Disadvantages of Arbitration
There really are no concrete disadvantages to arbitration – although some opine that by not using the courts to settle your dispute you are denying yourself the “due process of law.” Because arbitrators are not required to follow certain formalities, such as adhere to the rules of evidence, some fear the arbitrator is given too much discretion. This discretion could result in unpredictable results, unfair process, or the arbitrator being inclined to simply “split the difference” regarding the dispute.
Occasionally, the formalities required by the courts are necessary. For instance, in a highly contested dispute, the formal discovery process, the rules of evidence, and other aspects of courtroom litigation may be necessary to settle the dispute.
To find out more about the divorce process and determine the best route for you, please contact your Toronto divorce lawyer.