Family Law disputes are moving from the courts to private resolution. Family law mediation has been popular for many years and is very effective but not always. The trend is towards arbitration instead of court in family law and now it is often integrated with mediation in a Med/Arb process. This is a process where the mediator becomes the arbitrator. In Med/Arb a mediator is retained by both sides to first mediate the dispute and then to arbitrate if mediation fails to bring a full settlement. The parties know that that the mediator is the one who is to decide and they are more likely to settle knowing that. They usually get a sense of the views of the mediator at mediation and sometimes it is very clear. This encourages settlement but at the same time raises a danger if there is no settlement. The danger is that the mediator who becomes an arbitrator may begin the arbitration with a bias or appearance of bias that has developed from the mediation process. Sometimes that puts them in a situation where they have no choice but to withdraw from the case if it does not settle at mediation. For several years our instructors Murray Miskin and Gary Joseph have been strong critics of the Med/Arb process. Murray believes it can be done with proper safeguards and Gary believes it should not be done at all.Our new Family Arbitration course will prepare Mediators who are also Arbitrators for the dangerous path they are entering. There are different ways of mediating and some mediators use an evaluative approach where they are more likely to face problems if they move to the arbitration stage. A non evaluative mediator has an easier path as arbitrator. Our course will help you develop the skills you need to successfully conduct the Med/Arb process and Family Law Arbitration. We will have detailed discussion of the laws of evidence at arbitration and family law rules.
In Ontario Family Law Arbitration is now regulated by the Ontario Government so that practitioners must meet certain standards. Specific family law requirements can be found in amendments made to the Arbitration Act in 2006. There is also a Regulation under the Arbitration Act specific to Family Law Arbitration. The Regulation refers to requirements for arbitrators found at the Ontario Attorney General’s website.
The training requirement includes training in screening parties for power imbalances and violence. Training for that 14 hour requirement is offered elsewhere in a two day course. They also must have at least 30 hours of training in Family Law if they are not lawyers. That training is also offered elsewhere but we supplement that training from an arbitrator’s point of view. What we have offered for many years is Comprehensive Arbitration Training which enables students to work as arbitrators generally. We are now offering a one day additional Family Law Module to the arbitration course to specifically train students to be Family Law Arbitrators with specific training in Family Law Arbitration and in Med/Arb. To take this course you should have first taken the Murray Miskin arbitration course in 2012 or 2013 or take it the week of June 16, 2014. We will assume knowledge of arbitration and basic Ontario requirements for family law arbitration. The course will be offered in a seminar format combining lecture and discussion with small group exercises. The course date is Thursday July 3, 2014.
The family arbitration course module will be taught by Murray Miskin with co-instructor Gary Joseph who is a very experienced family law lawyer. Gary has seen many cases of how family law arbitration can go wrong and successfully appealed decisions of family law arbitrators. He is co-author of Carswell’s recently published book Family Law Arbitration in Canada. We will also use one or more coaches who are qualified in family law arbitration and mediation. The Comprehensive Arbitration Training Course comes with a certificate from the ADR Institute of Ontario. Registration is now open for the courses.
There is a just released second edition of Family Law Arbitration in Canada due to the many recent developments in related case law. We will be including a copy of the new book in materials for students who register for the Family Law Arbitration Course at no extra cost.
The Attorney General website suggests that Family Law Arbitrators have the following training which we provide in this new course:
“An arbitrator not familiar with legal processes should consider taking courses on how to be an arbitrator, as well as the required courses on Ontario family law for non-lawyer arbitrators.
Such courses are offered from time to time by dispute resolution organizations and by academic institutions such as universities and community colleges. Some private instructors also offer reputable courses.
Formal training in family arbitration will make the task of arbitration easier, increase the chances that the arbitration will be correct and helpful to the parties, and reduce the risk that awards will be set aside or overturned on appeal.
It may also help to attract business, as parties can ask about the credentials of potential arbitrators in deciding whom to choose. In addition, formal training can help arbitrators avoid more serious mistakes that might give rise to potential claims for negligence.”