Couples going through a divorce in Calgary often encounter some areas of dispute.
These are generally issues such as property division, child custody, spousal support, and so on: the key practical and emotional issues that are frequent points of contention in separation agreements.
Failure to tackle these issues early on can see them decided in court with a drawn-out litigation process that may not be in anybody’s best interests.
It needn’t end up like this.
There are other options available to you, usually termed Alternative Dispute Resolutions.
Apart from litigation, you have the options of:
Divorce arbitration can be especially beneficial if neither mediation nor collaboration has resulted in an acceptable agreement.
It is a possible final step in order to avoid litigation.
Many divorcing couples confuse arbitration and mediation. There are some important differences.
With divorce mediation, a couple hires an independent mediator in an attempt to work towards a settlement.
The decisions are all of their own makings. The mediator acts essentially as a facilitator of this arrangement and, if there is no agreement, another method must be sought (usually arbitration or litigation).
Arbitration involves an independent adjudicator: essentially a private judge who will listen to and examine evidence from both sides of the argument and then reach a decision deemed to be fair.
Both parties agree in writing to abide by the arbitrator’s decision, which is considered to be legally binding.
Decisions from arbitrators are extremely difficult to appeal through the Alberta court system and are granted only in compelling circumstances.
The main benefits ofdivorce arbitration overlitigation include:
Note that arbitration requires consent from both parties to proceed while litigation does not.
Note also that once the arbitration process begins, both spouses must see it through until a resolution is reached, the arbitrator resigns, or the arbitrator is removed by a court order.
The Arbitration Act of Alberta allows couples to appoint someone to make legally binding decisions about their separation without going to court.
An arbitrator is often a senior family lawyer and acts in a very similar role to a judge in a divorce case.
Your arbitrator can bring finality to issues that remain outstanding or in a deadlock between you and your spouse.
Often, an arbitrator will specialize in divorce cases and be experienced in the evidence-gathering and decision-making processes.
The decision that an arbitrator arrives at (called the “award”) carries the same power as a court order.
In many cases, mediation is used in combination with arbitration. It may be written into the mediation agreement that if no solution is found, an arbitrator will be appointed to decide.
This allows couples to retain some freedom to decide for themselves on any issues that can be negotiated.
There is a clear dividing line between the two processes. After the mediation process ends, an arbitrator will act as a private judge to decide on the more complex areas of dispute.
For instance, property division may be agreed upon but you and your spouse cannot reach an acceptable agreement on child custody.
An arbitrator can then be appointed to listen to evidence from you or your lawyers and to make a final decision.
Note that, if the terms of your mediation agreement allow it and your mediator is suitably qualified, a mediator may also act as an arbitrator.
In Alberta, if you are committed to divorce arbitration, the process can be conducted within the privacy of a lawyer’s office.
This is very different to the litigation process, which is usually conducted in a public court and which is usually a much more formal process.
Your lawyers may or may not be present during the arbitration process. Most couples choose for their lawyers to attend as they would a trial in court.
During the arbitration process, you will usually be guided through a series of steps by the arbitrator:
The costs of divorce arbitration are generally shared between the spouses, depending on their ability to pay.
An arbitrator may charge an hourly rate that is usually similar to the rate for hiring a lawyer.
Jennings Family Law’s initial consultation will help you decide if divorce arbitration is suitable for your case.
If so, we can help you choose an experienced arbitrator, prepare the necessary documentation, and represent you so that you can arrive at an equitable solution.