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Arbitration is an option that involves a third party called an arbitrator. Arbitrators, unlike mediators, act like a “judge,” as they are professionals trained to hear testimony, take evidence, and issue actual decisions for the couple. As in mediation, you and your spouse usually both hire experienced divorce lawyers to help with the arbitration process so that you are both advised and represented.

During arbitration there is an actual “hearing,” similar to a court hearing, but in a less formal setting. The law allows a lot of choice on terms of process as long as the procedure is fair to both sides. For instance, each side may present witnesses and documents as evidence to support their arguments. Like a court trial, you have little control over the outcome. Arbitration is not always confidential depending on what your signed arbitration agreement states. This option also tends to be more expensive than mediation because you and your spouse not only have to pay for an arbitrator and each of your legal fees, but, depending on the complexity, the “trial” preparation is often as extensive and time-consuming as preparing for an actual trial.

In order to have an arbitration, both spouses must agree to arbitrate. An arbitration agreement must be signed which must follow the following guidelines in order to be binding: it must be in writing; it must be made after separation; it must discuss how the award can be appealed; it must be conducted under the law of Ontario or another Canadian jurisdiction; both parties must acknowledge that they received independent legal advice; the arbitrator must be trained and must screen for domestic violence or power imbalances. These requirements are necessary in order for the arbitration to be enforceable in court.

An arbitration award can be enforced in several ways depending on what the award says and what term is being violated. The Family Law Act sets out a simplified procedure for enforcing arbitration awards (section 59.8). If the award orders a party to pay money, the award can be registered with the court for enforcement.