Shelagh Kinney recently attended an BC family law arbitration course for BC parenting coordinators held in Victoria, BC. BC parenting coordination and BC family arbitration generally involves two components. The BC parenting coordinator first attempts to resolve BC child custody parenting disputes through facilitation, consultation, coaching and education. However, if it is apparent to the BC parenting coordinator that the issue of BC child custody and guardianship will not be resolved by these methods, the parenting coordinator may act as an arbitrator to decide certain issues within the scope of the coordinator’s authority.
Unlike mediation, in which no decision is made without the parties’ consent, the arbitrator is a neutral decision maker who weighs and assesses the evidence presented and makes a final and binding decision or award.
In appropriate cases, parents may choose to use alternative dispute resolution processes including mediation and arbitration for some of the following reasons:
- avoidance of adversarial proceedings
- avoidance of delays and the rigours of the court process
- reduction of costs
- preservation of privacy
- choice of mediator or arbitrator who reflects the values of the parents
- finality of a binding decision
Family law arbitration has not in the past been widely employed as a dispute resolution option in British Columbia. However, this is set to change because changes are proposed to the Commercial Arbitration Act to make arbitration more accessible and more workable for family law disputes.
The changes add safeguards to address some unique aspects of family disputes. Agreements to arbitrate (the contracts that initiate family law arbitrations) may be set aside on the same basis as other agreements, on grounds such as duress, or lack of understanding by a party of the nature and effect of the agreement. Family law arbitration awards may be appealed to the Supreme Court on a question of fact or mixed fact and law as are judicial decisions under the draft legislation. As is currently the case, judges determining an issue on appeal will apply the relevant Canadian or British Columbian family law.
