I offer representation for my clients in the mediation/arbitration process. The objective of mediation/arbitration is to provide a process for settlement, but also for adjudication in the event that mediation is not successful. In other words, any issue that is not settled during the mediation phase will then be ruled upon during the arbitration process, provided both parties have waived section 35 of the Arbitration Act (the provision that prevents a mediator from subsequently acting as an arbitrator). The arbitration process is similar to court, in that, the arbitrator, after hearing all the evidence, will make a binding decision on the issues according to the rules of evidence and law. It follows that each party should have a lawyer for the arbitration phase.
The arbitrator's decision is binding and can be enforced under section 59.8 (5) (a) of the Family Law Act. Prior to the commencement of the process, the parties will sign a Mediation Arbitration Agreement. In that Agreement, they will waive their right to litigate their issues in court. What is attractive about the mediation/arbitration process is that settlement or a final decision will be achieved in a relatively short period of time, especially when compared to the court process (which can take years in some cases). Furthermore, most cases settle during the mediation phase.
The knowledge that a binding decision will be rendered if mediation fails motivates most parties to settle. Mediation/arbitration is a voluntary process that requires both parties to enter into a Mediation Arbitration contract. Unlike mediation alone, once a Mediation Arbitration Agreement is signed, both parties are bound to the process and waive their rights to litigate in court. This may be the best process if there is a risk that one party has an interest in delaying proceedings. Again, having lawyers trained in the "principled approach" will allow the parties a greater opportunity to find resolution during the mediation phase.