John-Paul Boyd Arbitration Chambers

 

About John-Paul Boyd Arbitration Chambers

 

John-Paul Boyd Arbitration Chambers provides mediation and arbitration services for family law disputes in Alberta and British Columbia. John-Paul Boyd is a senior family law lawyer nationally known for his big-picture approach to family justice issues, contributions to public legal education on family law, and special expertise in disputes concerning parenting, support and jurisdictional disputes.

John-Paul’s goal is to help the parties to a family law dispute resolve their dispute fairly and in a way that takes into account the impact that the dispute may have on any children, minimizes conflict and encourages cooperation between the parties, and promotes the future functioning of the separated family. John-Paul will attempt to resolve the dispute through mediation before resolving the dispute through arbitration, unless the parties prefer to head directly to arbitration.

John-Paul Boyd Arbitration Chambers uses an electronic, paperless process to streamline mediation and arbitration proceedings and provide a fair, speedy and cost-effective resolution of family law disputes. Documents are shared and delivered through a secure client portal, and meetings may be held in person, by teleconference or by videoconference, using services such as Skype and FaceTime. When it is necessary to meet in person, meetings can be held anywhere in Alberta and British Columbia.

John-Paul Boyd Arbitration Chambers uses arbitration rules specially designed for family law disputes, rather than the commercial rules that are usually used. The rules use simplified forms and take a simplified approach to evidence. They allow the views and preferences of children to heard, and offer a full range of discovery and procedural options to ensure that the arbitration process is proportionate to the importance, value and complexity of the issues in dispute.

The rest of this page talks about how mediation and arbitration work together, the different procedural options for arbitration with John-Paul Boyd Arbitration Chambers and hearing children’s views and preferences in arbitration. You can read about the other services provided by John-Paul Boyd Arbitration Chambers in the Independent Legal Advice and Children’s Services page.

How mediation and arbitration work together

Mediation is private, cooperative negotiation process in which the parties work with a neutral third party, a mediator, to reach an agreement on all or some of the issues in dispute. The mediator does not make decisions for the parties. The mediator helps the parties make decisions for themselves.

In arbitration, the neutral third party is an arbitrator, and the parties agree that the arbitrator will make decisions for them, and that they will be bound by the arbitrator’s decisions. Arbitration is, like mediation, a private process, but it’s not always cooperative. Arbitration is, like litigation, an adversarial process.

Because arbitration is an adversarial process, each party is responsible for proving the facts of their case and making arguments to the arbitrator about why the result they want is the right result. As a result, arbitration proceedings are governed by Rules of Procedure and there are tests about when evidence can be admitted and the weight the arbitrator should give to evidence that is admitted.

There are no rules that govern mediation proceedings, nor is there evidence in the formal sense of the word. The mediator leads the mediation process in an informal way, and the parties often rely on records like bank statements, tax returns and property assessments to make their points.

Despite these important differences, mediation and arbitration can work together.

The general Mediation and Arbitration Agreement used by John-Paul Boyd Arbitration Chambers allows the parties to try mediation first to resolve the legal issues in their family law dispute, before moving to arbitration to resolve any legal issues that are unresolved. This is called mediation-arbitration, or sometimes “med-arb.” You can download a copy of the Mediation and Arbitration Agreement in the Family Law Mediation and Arbitration Agreements page.

However, there’s nothing stopping parties from switching to mediation in the middle of an arbitration proceeding, and then back to arbitration if necessary. In fact, you should expect the arbitrator to propose this if he or she senses that an agreement is possible on one or more of the legal issues.

The general Mediation and Arbitration Agreement says that the arbitrator can rely on the documents and information exchanged in any mediation proceedings in the arbitration proceeding. The arbitrator will check with the parties about what can be used in the arbitration proceeding before leaving any mediation proceedings.

Procedural options in arbitration

John-Paul Boyd Arbitration Chambers offers a variety of procedural choices to parties dealing with family law disputes. The reason why there are so many choices, or even a choice at all, is John-Paul Boyd’s belief that the level of process available in a family law dispute should be proportionate to the circumstances of each family, the needs of their children and the complexity and value of the legal issues. Some disputes do need all of the bells and whistles available in litigation proceedings to resolve fairly; most do not.

Although all of these procedures, except for the first, decision without reasons, are described in the Family Law Arbitration Rules of Procedure, the details of how they work can be changed if all parties agree and, in the opinion of the arbitrator, the changes still allow for a fair determination of the legal issues on the merits. You can download a copy of the Rules of Procedure in the Family Law Arbitration Rules of Procedure page.

A. Decision without reasons

This procedure involves a brief oral hearing by teleconference or videoconference, and potentially in person, and is most appropriate when the parties have a small number of legal issues that they need resolved quickly and cost-effectively. Each party presents their arguments, following which the arbitrator makes a determination of the issues.

This procedure is speedy as there is no formal claim or response to claim, there is no discovery or disclosure, any narrative evidence is provided through written statements, and the arbitrator does not provide a written award or reasons for his or her decision.

B. Decision on a legal issue

This procedure is intended to resolve one or more legal issues when the parties mostly agree on the important facts, but is still relatively quick and cost-effective. There are no witnesses and no other evidence is presented. Although there may be an oral hearing before the arbitrator, the legal issues can also be resolved without a formal hearing.

The parties must prepare an agreed statement of the facts relevant to the legal issues. If evidence is necessary, it is provided through documents and written statements. If there is no oral hearing, the parties’ arguments are provided in writing.

Once the parties have presented their arguments, the arbitrator will issue an award with reasons.

C. Decision on written evidence

This procedure is intended to resolve legal issues when the claimant and the respondent mostly agree on the important facts, or when any disputes about the facts are relatively minor. There are no witnesses, and all evidence is presented in writing, though written statements, experts’ reports, business records and other documents. The facts and legal issues will be resolved at a hearing before the arbitrator.

The arbitrator will decide, after consulting with the parties, about any expert reports that will help to resolve the dispute, which experts will prepare those reports, the questions the experts will be asked to address and the date when the reports will be completed. The parties will exchange copies of the written statements they will be relying on at the hearing, and the parties must prepare a statement of agreed facts, setting out the facts that are not in dispute.

Once these steps are complete, the arbitrator will schedule a hearing if a party requests. At that hearing, the parties will present their evidence as well as oral arguments to the arbitrator about how the facts and the legal issues should be decided. If no one requests a hearing, the parties will provide written arguments to the arbitrator.

Once the parties have presented their evidence and their arguments, the arbitrator will issue an award with reasons.

D. Decision on written and limited oral evidence

This procedure is intended to resolve legal issues when the parties cannot agree on important facts and some oral evidence will help to resolve the facts in dispute. The main evidence of each party’s witnesses is presented in writing, through written statements, and each of those witnesses may be subject to limited oral cross-examination by the other parties. All other evidence is presented in writing, through experts’ reports, business records and other documents. The facts and legal issues will be resolved at a final hearing before the arbitrator, and there may be one or more interim hearings before the final hearing.

Before the hearing, the arbitrator will decide, after consulting with the parties, about any expert reports that will help to resolve the dispute, which experts will prepare those reports, the questions the experts will be asked to address and the date when the reports will be completed. The parties will agree, or a decision will be made, about the witnesses who will be cross-examined and the amount of time that will be provided for the cross-examination of each of these witnesses. The parties will exchange copies of the written statements they will be relying on at the hearing and must prepare a statement of agreed facts, setting out the facts that are not in dispute.

Once these steps are complete, the arbitrator will schedule a hearing. At that hearing, the parties will present their evidence and cross-examine the other parties’ witnesses, and make oral arguments to the arbitrator about how the facts and the legal issues should be decided. The arbitrator will then issue an award with reasons.

E. Decision on limited oral evidence

This procedure is intended to resolve legal issues when the parties cannot agree on important facts and oral evidence will help to resolve the facts in dispute. Most evidence is presented orally, through the evidence of a limited number of witnesses in a limited amount of time. The evidence of each party’s witnesses is presented though direct examination, and each of those witnesses may be subject to oral cross-examination by the other parties. All other evidence is presented in writing, through experts’ reports, business records and other documents. The legal issues will be resolved at a final hearing before the arbitrator, and there may be one or more interim hearings before the final hearing.

Before the hearing, the arbitrator will decide, after consulting with the parties, about any expert reports that will help to resolve the dispute, which experts will prepare those reports, the questions the experts will be asked to address and the date when the reports will be completed. The parties will then agree, or a decision will be made, about the number of witnesses each party may present, and the amount of time that will be provided for the direct examination and cross-examination of each witness. The parties will exchange will-say statements for each of their witnesses, statements that summarize the things each witness will say in their direct examination. The parties must prepare a statement of agreed facts, setting out the facts that are not in dispute, and must exchange offers to settle the legal issues.

Once these steps are complete, the arbitrator will schedule a hearing. At that hearing, the parties will present their evidence and cross-examine the other parties’ witnesses, and make oral arguments to the arbitrator about how the facts and the legal issues should be decided, and whether a party should be ordered to pay for the costs of the arbitration proceeding. The arbitrator will then issue an award with reasons.

F. Decision on full oral evidence

This procedure is intended to resolve legal issues when the parties cannot agree on the facts and oral evidence will help to resolve the facts in dispute. Most evidence is presented orally, through the direct examination and cross-examination of each party’s witnesses. All other evidence is presented in writing, through experts’ reports, business records and other documents. The legal issues will be resolved at a final hearing before the arbitrator, and there may be one or more interim hearings before the final hearing. This is the arbitration process that is the most similar to how trials work in litigation proceedings, and will usually be the slowest and most expensive way of arbitrating a family law dispute.

Before the hearing, the arbitrator will decide, after consulting with the parties, about any expert reports that will be needed to resolve the disputes, which experts will prepare those reports, the questions the experts will be asked to address and the date when the reports will be completed. The arbitrator will also decide about whether the parties will be able to present expert reports of their own.

The parties will then agree, or a decision will be made, about when the parties will exchange interrogatories, lists of questions that must be answered by the other party on oath or affirmation, and when the answers to those questions must be provided. The parties will agree, or a decision will be made, about whether the parties will be entitled to cross-examine each other privately and in the absence of the arbitrator, called a questioning in Alberta and an examination for discovery in British Columbia. The parties will exchange will-say statements for each of their witnesses and must prepare a statement of agreed facts, setting out the facts that are not in dispute. The parties must also exchange offers to settle.

When these steps are complete, the arbitrator will schedule a hearing. At that hearing, the parties will present their evidence and make oral arguments to the arbitrator about how the facts and the legal issues should be decided, and whether a party should be ordered to pay for the costs of the arbitration proceeding. The arbitrator will then issue an award with reasons.

G. Decision on limited oral evidence from inquisition

This procedure is intended to resolve legal issues when the parties are not represented by lawyers, the parties cannot agree on important facts and oral evidence will resolve those disputes. Most evidence is presented orally, through the answers of a limited number of witnesses to questions asked by the arbitrator, with each party having a limited right to ask further questions of each witness. All other evidence is presented in writing, through experts’ reports, business records and other documents. The legal issues will be resolved at a final hearing before the arbitrator, and there may be one or more interim hearings before the final hearing.

Before the hearing, the arbitrator will decide, after consulting with the parties, about any expert reports that will help to resolve the dispute, which experts will prepare those reports, the questions the experts will be asked to address and the date when the reports will be completed. The parties will agree, or a decision will be made, about the which witnesses will be asked to give evidence and how long each party will have to ask further questions of each witness after the arbitrator’s questions. The parties will then agree, or a decision will be made, about when offers to settle will be exchanged.

Once these steps are complete, the arbitrator will schedule a hearing. At that hearing, the parties will present their witnesses for questioning by the arbitrator, and make oral or written arguments to the arbitrator about how the facts and the legal issues should be decided. The arbitrator will then issue an award with reasons.

Hearing the views of children in arbitration

The parties to all family law disputes are the spouses, partners or parents who are living apart, and sometimes also members of their extended families. This makes some sense, as these individuals are the main actors in the legal drama, they are the ones suing and being sued and they are the ones able to hire lawyers to prosecute and defend their claims. However, these adults are not the only ones affected by the dispute.

We all, parties, lawyers and judges alike, get caught up in the clash of interests and turmoil of legal processes and it’s easy to forget how the legal dispute and its manner of resolution affect the needs and wellbeing of the children. Their interests are an afterthought lost in the commotion.

In fact, the Code of Conduct governing Canadian lawyers only mentions children in the context of adversarial proceedings once. Lawyers are required only to “advise the client to take into account the best interests of the child,” providing that “this can be done without prejudicing the legitimate interests of the client.” Children really are an afterthought.

Unfortunately, the short- and long-term outcomes for children from conflict between their parents is well known and understood. Although the impact of conflict on children varies according to their age and maturity, the nature of the conflict they are exposed to and the duration of the conflict, conflict is always harmful to children and young people.

Canada is a signatory to the UN Convention on the Rights of the Child, an international treaty that gives children certain civil and human rights, and signatory governments certain corresponding obligations. Among these rights are the right of children “to express their views freely in all matters affecting them,” and the right “to be heard in any judicial and administrative proceedings” affecting them, “either directly, or through a representative.”

We also know that children and young people usually want to be heard when their parents are making important decisions about their future, and feel left out and marginalized if their voices are not heard. Although children want to have a say, they don’t want to be responsible for making decisions about their parenting arrangements after separation. Many children want to talk to their parents and the legal professionals involved in their parents’ disputes about their experiences and their hopes for the future. The Convention imposes a duty to hear from children when they wish to express their views and preferences, and to give weight to children’s wishes in accordance with their age and maturity.

The Rules of Procedure used by John-Paul Boyd Arbitration Chambers offer a number of ways to hear from children, ranging from interviews with the arbitrator, to appointing an independent lawyer to represent the children, to the preparation of views of the child reports by a neutral third party, to arranging for a mental health professional to conduct a parenting assessment. John-Paul Boyd is a strong advocate for children’s rights in family law disputes and currently serves on the Canadian Bar Association’s Children’s Law Committee. He is experienced in interviewing children, and has prepared non-evaluative views of the child reports since 2007. He was also instrumental in establishing the BC Hear the Child Society.

You can read more about the services John-Paul Boyd Arbitration Chambers provides for children, preparing views of the child reports, drafting children’s affidavits and giving legal advice to children, in the Independent Legal Advice and Children’s Services page.

 

 

Copyright © 2018 John-Paul E. Boyd