Mediation is private, cooperative negotiation process in which the people involved in a family law dispute, the parties, work with a neutral third-party, a mediator, to reach an agreement on all or some of the issues in dispute. As a mediator, John-Paul Boyd does not make decisions for the parties; he 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 an adversarial process, like litigation.
Because arbitration is an adversarial process, each party is responsible for proving the facts of their case and making arguments to John-Paul about why the result they want is the right result, the most fair result and the most appropriate result in the circumstances. Because arbitration is adversarial, it is governed by rules of procedure and there are other rules about when evidence can be admitted, and the weight John-Paul should give to evidence that is admitted. However, the rules of procedure are very, very flexible and can be adapted to suit the needs and situations of the parties; read more about this in the next section. It is very important to carefully consider what rules should govern an arbitration, and John-Paul will work with the parties and their lawyers to pick the rules that are most suited to the parties and the nature of their dispute.
Mediation is not governed by rules, nor is there evidence in the formal sense of the word. John-Paul will lead the mediation process in an informal way, and the parties will often rely on records like bank statements, tax returns and property assessments to make their points.
Despite these important differences, mediation and arbitration can and do 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 can’t be settled. This is called mediation-arbitration, or med-arb. (You can download a copy of our Mediation and Arbitration Agreement from this website.) However, there’s nothing stopping people from switching to mediation in the middle of an arbitration proceeding, and then switching back to arbitration if necessary. In fact, you should expect John-Paul to suggest this if it seems that an agreement is possible on one or more of the legal issues being addressed in the arbitration. It’s always best for people to reach a decision on their own rather than have a decision made for them.
The rules that govern arbitration are very flexible. Although the people involved in a family law dispute could select a process that looks just like litigation, it’s important to think about how the rules could be changed to make the process more efficient while still resolving the legal issues fairly. It’s also important to think about:
the impact of the arbitration on each of the parties, on any other people involved in the parties’ dispute and on the children;
how the parties can reduce conflict and encourage cooperation;
the cost of the arbitration process; and,
the speed and efficiency of the arbitration process
The rules that govern an arbitration, and the extent of the different procedures they provide, should be proportionate to:
the wellbeing and interests of the children, and the future interests of the family as a whole;
the importance and complexity of the issues involved in the dispute;
the value of any claims for support and the value any property or debt in dispute; and,
each party’s wellbeing and long-term interests.
To help with these decisions, the rules developed by John-Paul Boyd Arbitration Chambers have a number of built-in procedural options.
When a dispute is all about one or two legal issues and the parties mostly agree on the facts, evidence from witnesses and documents may not be necessary. John-Paul will make a decision resolving the legal issues after considering the parties’ oral or written arguments. This is the fastest and least expensive way to resolve a family law dispute, and an in-person hearing usually won’t be necessary.
When a dispute is more complicated but disagreements about the facts are relatively minor, evidence can be presented through written statements, experts’ reports, business records and other documents, and an oral hearing may not be necessary. John-Paul will make a decision after reading the documents and considering the parties’ oral or written arguments.
When the parties can’t agree on important facts, an arbitration can be based on a combination of reports, documents, written statements and the limited cross-examination of the people making the written statements. We will schedule an oral hearing and John-Paul will make a decision after reading the documents, hearing the witnesses and considering the parties’ oral arguments.
When both the legal dispute and the facts are complicated, and the parties agree on very little, an arbitration can be based on reports, documents and the direct and cross-examination of witnesses, and include a full process allowing each party to review the other party’s documents and question the other party before an oral hearing. John-Paul will supervise the exchange of documents and other information and organize any experts’ reports that may be needed. John-Paul will make a decision after reading hearing the witnesses and considering the parties’ oral and written arguments. This process is the most like litigation, and will usually be the slowest and most expensive way to resolve a family law dispute.
Hearing from children
It is important to hear from children when parents are making a decision affecting their interests and wellbeing. Recent research has found that children want to be included in the processes used to develop parenting plans for their care after separation. Children want to be consulted to be acknowledged, to exercise personal autonomy and to be better informed about the decisions being made. They do not want to have to choose between their parents but instead provide input on the arrangements made for their day-to-day care. Children prefer to be involved in the decision-making process early on, including at their parents’ decision to separate.
The same research has also found that children want to be treated with respect, to be acknowledged and to be listened to in a meaningful way, and that children who were allowed the opportunity to participate in the decisions being made by their parents reported experiencing the change in their families as positive and were able to maintain positive relationships with both parents. However, children also said they experienced feelings of vulnerability, change and loss, and felt anxious about being asked to choose between their parents.
The views and opinions of children can and should be taken into account when their parents are using mediation and arbitration to make decisions about their future parenting. Hearing from children can be a simple as arranging a private interview with John-Paul, another lawyer or a mental health professional, and having that person report back to the parties. If a report is necessary, John-Paul Boyd Arbitration Chambers can arrange the independent preparation of a non-evaluative views of the child report, an evaluative views of the child report or a full parenting assessment, also called a custody and access report.
When the level of conflict between the parents is very high and they can’t agree on what their children want or what is in their best interests, an independent lawyer can be hired to represent the children in a mediation or arbitration between their parents.
meetings & hearings
Conferences, meetings and hearings in mediations and arbitrations conducted by John-Paul Boyd Arbitration Chambers can be held by teleconference or by videoconference. In-person meetings and hearings, when they are necessary, can be held anywhere in Alberta or British Columbia; John-Paul Boyd Arbitration Chambers does not require clients to pay for John-Paul’s travel costs.
agreements & awards
Immediately following the end of mediation, John-Paul will prepare a memorandum of agreement outlining the terms on which the parties have agreed to settle their legal dispute and identifying any issues about which agreement has not been reached. The parties and their lawyers will read and sign the memorandum, and then one of the lawyers or one of the parties will use the memorandum to prepare a formal separation agreement or draft an order that the parties agree that the court should make, called a consent order.
At the end of an arbitration, John-Paul will usually draft a formal arbitral award that summarizes his conclusions about the facts of the dispute, the law that applies to the dispute and his decisions about how each issue in the dispute will be resolved. An arbitral award is binding and enforceable as it is, but sometimes one of the lawyers or one of the parties will prepare a consent order on the terms of John-Paul’s award.
people without lawyers
John-Paul provides mediation, arbitration and med-arb services for people who do not have lawyers. People without lawyers are strongly encouraged to obtain legal advice about the meaning and impact of our Mediation and Arbitration Agreement before signing the agreement.
For people without lawyers who are pursuing arbitration, we have designed a special arbitration procedure in which John-Paul will help the parties identify the legal issues to be resolved, help them determine the documents and information that must be exchanged before the arbitration hearing, and will lead the questioning of witnesses at the hearing.
limitations of mediation & arbitration
Neither mediation or arbitration can divorce people. A court order is required for a married couple to be divorced. (Couples who are not married do not need to get divorced.)
Mediation and arbitration also cannot help when legal steps can only be taken by a judge. In family law disputes, the most important legal steps that must be accomplished through court are orders appointing or removing an adult as the guardian of a child, orders for the change of an adult’s or a child’s name, orders for the adoption of a child and orders changing or cancelling an order made by a court in another jurisdiction.