The Arbitration option in matrimonial cases: Timely access to justice

THE ARBITRATION OPTION IN MATRIMONIAL CASES:

TIMELY ACCESS TO JUSTICE

This week, one of the family lawyers in our office was inquiring about the availability of judges at the New Westminster registry of the BC Supreme Court. He needed a one day hearing on a family law matter and he was advised that for the last five months of 2013 there were only two days available!

As we have heard so often, access to justice is becoming harder and harder to achieve for a variety of reasons including lack of court room space, a shortage of available judges, and increasing costs.

The financial costs are obvious. Less well understood, or appreciated, are the emotional repercussions of delay and uncertainty and the frustration of not being able to move forward or start over until resolution of the dispute.

This blog isn’t focused on those who are cooperating through the collaborative process or mediating their issues rather than litigating them. This piece is about those spouses who have concluded that they are never going to be able to cooperatively resolve issues with a former spouse. Mediation may have been tried unsuccessfully but the parties are now in litigation. Costs are mounting and access to justice is compromised by the inability to find court time.

One option that is being highlighted under the new Family Law Act is arbitration. Historically it was ignored by most family lawyers and their clients because there was considerable misunderstanding about how to use it and the Commercial Arbitration Act in BC did not make it very attractive. It is now amongst the options under s.1 of the Family Law Act which defines “family dispute resolution” as a process including:  “mediation, arbitration, collaborative family law and other processes….”

The new Arbitration Act in BC sets out the guidelines for family law arbitration including the fact that an arbitration agreement cannot limit the court’s ability to review any award made under an arbitration agreement. The court can also enforce arbitration awards as if they were orders of the court.

The ability to appeal an arbitration award is also addressed in the Arbitration Act at s.31 where the court has a broader appeal jurisdiction in family matters than in other areas.

Most importantly however are:

• The arbitration process in family matters can be very flexible. It is not uncommon to schedule evenings or weekends for arbitration. Many formalities of the court process can be modified or eliminated altogether.
• Pre arbitration meetings can streamline the process and accommodate the unique needs of families in particular cases.
• Costs can be substantially reduced with input from counsel and the parties working collaboratively with the arbitrator.
• Of considerable importance to many family law litigants is also the ability to retain confidentiality of the family’s affairs, which is only available in limited circumstances through the courts.

There are options to the traditional court process and they are worthy of consideration whether they be mediation, collaborative law, or arbitration. You can take charge of resolution of your family law dispute.