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Like mediation and collaborative negotiation, arbitration is a voluntary process. The parties to a dispute must all ''agree'' to use arbitration to resolve their legal dispute. Like those processes, arbitration is also an out-of-court way of resolving problems. However, that's where the similarities between arbitration, mediation and collaborative negotiation end. While the parties to a dispute may have agreed to use arbitration to resolve their dispute, it's the ''arbitrator'' who resolves their dispute, not the parties themselves.
Before the new ''[[Family Law Act]]'' became law in British Columbia, arbitration was rarely used in family law disputes, probably because most lawyers figured that if they have to have somebody make a decision in a case, it might as well be a judge. Arbitration was most often frequently used in the context of commercial, labour, and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The ''Family Law Act'', however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court has been increasing as a result.
Arbitration offers a number of advantages for resolving family law problems:
After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.
====Other Alternative arbitration processes====
Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process I've just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. Sometimes written arguments alone will do. And, if the parties agree, awards can provide a summary explanation of the arbitrator's decision rather than a full explanation.
I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from the [https://www.boydarbitration.ca/rules-of-procedure website] of John-Paul Boyd Arbitration Chambers.
====Mandatory elements of arbitrationprocesses====
Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are required in British Columbia.
Otherwise, the parties and their arbitrator are free to be as creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, their timeline, and their budget.
===Changing, challenging and appealing awards===
If you are unhappy with an arbitrator's decision, you might be able to ''appeal'' the arbitrator's award, in the same way that a decision of the Provincial Court can be appealed to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. When you appeal an award, you are arguing that the arbitrator made an important mistake and that, as a result of the arbitrator's mistake, all or some of their award should be cancelled.
There are other reasons why you might ask that an award be cancelled, usually because of flaws in the arbitration process itself. You would only challenge an award you're unhappy with; if you're happy with the award, you're not likely to be concerned about the fairness of the arbitration process.
On the other hand, you might have an award that you're happy with, but no longer works because there's been an important change in your circumstances, the circumstances of the other party or the circumstances of the children. If there has been an important change, you can apply to court to ''vary'' the award, in the same way that the court can vary a court order.
====Changing awards====
Under section 19.18(3) of the [[Family Law Act]], you can apply to the Supreme Court to change, suspend or cancel all or some of an arbitrator's award when there has been an important change in circumstances after the award was made. This is called "varying" an award.
You can apply to vary an award about a particular issue on the same terms as you can apply to vary a court order about that issue. This means that you need to look at the part of the ''Family Law Act'' that applies to varying orders about the particular issue you're dealing with. If your issue is about child support, for example, you need to look at section 152 of the act. Under section 152, the court may vary an order about child support for one of three reasons:
#if there has been an important change of circumstances since the child support order was made, usually a change about income or the children's living arrangements,
#if important evidence has come to light that wasn't available at the hearing which resulted in the child support order, or
#if a lack of financial disclosure was discovered after the hearing which resulted in the child support order.
Section 47 of the ''Family Law Act'' is about varying orders for children's parenting arrangements, section 60 is about varying orders for contact with a child, and section 167 is about varying orders for spousal support.
====Challenging awards====
Under section 19.18(1) of the ''Family Law Act'', you can apply to the Supreme Court to change or cancel an arbitration award for one or five reasons concerning the basic fairness of the arbitration process:
#you have doubts about the arbitrator's independence or impartiality,
#you were not given a reasonable opportunity to be heard during the arbitration process,
#the arbitrator's award was obtained through fraud or duress from the other party,
#the award deals with legal issues not included in your arbitration agreement, or
#the arbitrator exceeded their authority.
It's important to know that, under section 16.18(2), you can only ask to change or cancel an award because of doubts about the arbitrator's independence or impartiality if there is a "real danger of bias" on the part of the arbitrator. This can be difficult to prove. In ''[https://canlii.ca/t/1prwz Spence v. The Board of Police Commissioners of Prince Albert]'', a 1987 decision of the Saskatchewan Court of Appeal, the court explained what you have to prove to show a real danger of bias, saying that:
<blockquote>“The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended.</blockquote>
====Appealing awards====
Under section 19.19 of the ''Family Law Act'', you can appeal all or part of an arbitrator's award to the Supreme Court on:
#a question of law, or
#a question of mixed fact and law.
Questions of law are about which law should be applied to determine a legal issue. Appeals based on questions of law argue that the arbitrator applied the wrong legal test or interpreted the legal test incorrectly. Questions of mixed fact and law are about whether the facts satisfy the legal test. Appeals can be complicated, and it's always a good idea to talk to a lawyer before deciding to appeal an arbitrator's decision.
Appeals must be started within 40 days of the date you received the arbitrator's award.
===Other uses of arbitration===
* [https://www.clicklaw.bc.ca/resource/1497 "Alternatives to Going to Court" PDF] from the Justice Education Society of BC
{{REVIEWED | reviewer = [[JP Boyd]], 25 August 202118 April 2023}}
{{JP Boyd on Family Law Navbox|type=chapters}}