1. Decide if you should arbitrate

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Family Law - Out of court options
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National Self-Represented Litigants Project (NSRLP)

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What is arbitration?
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1. Decide if you should arbitrate

There are many reasons why people choose arbitration. And there are also reasons why they don't. Think about these reasons and then decide if you want to try arbitration with your partner.

Reasons to arbitrate

  • It is usually private or confidential. This is different from a court case. Once you start a court case, your file is usually open to anyone. In arbitration, the process is private but can become open to anyone in a few situations. For example, if one partner wants to appeal the arbitrator's decision, then a court file is opened and anyone can look at your file.
  • The process can be and faster than going to court once you and your partner can agree on things like who will be your arbitrator and what issues to resolve by arbitration.
  • It can be cheaper than going to court.

Arbitration also gives you a lot of control over the process. You can decide things like:

  • who to hire as your arbitrator. You can pick someone with the experience you need. For example, a lawyer with experience in parenting plans
  • what documents you have to share, how you share them, and when
  • when you meet with your arbitrator
  • whether your lawyers go to arbitration with you
  • if you want to apply the family court rules to arbitration, or a simplified version of these rules

Some people like arbitration and mediation-arbitration more than mediation because the arbitrator makes a decision if they cannot agree. So they don't have to start the process all over if mediation doesn't work.

Reasons not to arbitrate

Some of the reasons not to use arbitration are:

  • Although it can be cheaper than going to court, you still have to pay the arbitrator. Most partners share this cost.
  • You and your partner must get independent legal advice (ILA) before using arbitration. This means you both have to hire your own lawyers, which makes the process more expensive.
  • It isn't suitable when you have an emergency and need a court order. For example, if there is a risk that your partner is going to leave the country with your child. 
  • You feel that the process won't be fair or safe, even with an arbitrator and lawyers involved. For example, if there is a history of partner abuse and your partner makes threats or hides information from you. Arbitrators must check for partner abuse first. They may be able to plan the process in a way that lets it be fair and safe.

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Ministry of the Attorney General
Reviewed: July 31, 2017

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