How Do I Start Arbitration with My Spouse?

Pick the right moment

You can't force your ex to go to arbitration with you, you can only do it with their agreement. Of course, your ex isn't likely to agree to arbitration if they are still feeling pissed off about a recent argument or resentful about the end of the relationship.

When you've got the right moment, suggesting arbitration can be as simple as calling your ex up, inviting them out for a cup of coffee at the local Tim Hortons, and making your case to try arbitration rather than another process, like going to court:

"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, but we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Simeng what happened with her and Robert, and she said that they resolved everything through arbitration."

At this point, it's all about getting your ex to try arbitration, and it's your job to sell the idea. Here are some reasons why arbitration is a really, really good idea:

• arbitration is private, there is no court file and the hearing is not open to the public,
• you can arbitrate with the help of lawyers or on your own,
• you can pick an arbitrator who's an expert in the issues that are the most challenging or important for your family,
• you can get the help of professionals like child psychologists, business valuators, and tax planners in the arbitration process,
• with input of the arbitrator, you can design the rules that will apply to the arbitration process,
• with input of the arbitrator, you can decide on the documents and information that will be needed for your hearing,
• the arbitrator's decision is just as final and just as binding as a court award,
• you can schedule the hearing date as soon as you want, where you want, and
• with faster hearings and a more efficient process to get there, arbitration is almost always cheaper than litigation.

Going to trial will cost a minimum of $15,000 in lawyer's fees for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! As well, trials in court can take anywhere from eight months to two years to start.

If this doesn't get your ex to agree to try arbitration, tell them to ask separated friends, family members, and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

Hire an arbitrator

Now that your ex has agreed to try arbitration, you need to strike while the iron is hot and find an arbitrator as soon as possible.

Before hiring an arbitrator, make sure you've looked into their background to find out if they have special training in arbitration, and any special expertise or interest in the issues that are most important in your family law dispute. Lawyers who have training and are accredited to arbitrate by the Law Society are called family law arbitrators, and they will usually advertise themselves as such.

When picking an arbitrator, go to the website of a professional arbitrators' association like the ADR Institute of British Columbia. Associations like this will have a list of their members, the training and experience they require for membership, and a short biography of each member. If that doesn't work, call a family law lawyer. Most family law lawyers will know one or two arbitrators they can recommend, and will be happy to give you those arbitrators' names and phone numbers.

You could also try doing an internet search for something like "family law arbitrator penticton" or "family law arbitrator parenting." Putting your search term inside quotes forces most search engines to look for the exact phrase you've used.

When you first speak to an arbitrator you're interested in hiring, be careful not to say too much about your case or your ex. It is very important that your arbitrator remain unbiased, and your ex will want to know exactly what you've said to the arbitrator about your relationship and your legal dispute.

What happens next

Once you've contact an arbitrator, they will reach out to your ex to confirm their interest in pursuing the process. They'll probably also send a copy of their standard arbitration agreement for each of you to look at. It's a good idea for you to get some independent legal advice about the agreement, as the agreement will describe:

• your responsibilities in the arbitration process,
• your ex's responsibilities in the process,
• the role of the arbitrator,
• how the arbitration will conclude, and
• the arbitrator's rates and when you will be responsible to pay for the arbitrator's bills.

The arbitrator will also schedule a conference to talk about the legal issues, schedule the place and date for the arbitration hearing and work with you to develop the rules that will apply to the arbitration process. These rules are very important and will talk about:

• the documents and evidence you'll exchange with your ex before the hearing,
• the other steps that can be taken to get information about your case before the hearing,
• whether you will be hiring any experts to give opinions at the hearing,
• whether evidence will be presented at the hearing, and, if so, how it will be presented, and
• how arguments will be made at the hearing.

Don't skip this conference, it's very important!

For more information

You can find more information about arbitration in the chapter Resolving Family Law Problems out of Court.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by John-Paul Boyd, May 11, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.