Given the backlogs in the court system and the growth of private dispute resolution in family law matters, more couples are retaining aMediator/Arbitrator to help them resolve their divorce. In Ontario, many senior divorce lawyers and former justices have established busyMediation/Arbitration practices helping such families achieve fast, fair and inexpensive divorce settlements. The advent of Mediation/Arbitration has even been recognized and applauded by some judges in their court decisions.
In the case of N.M.A. v. J.B.A. 2024 ONSC 1346 (CanLII), the judge wrote:
“Mediation/Arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The Mediation/Arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children.”
Even so, because of the private nature of Mediation/Arbitration, safeguards have been established to ensure fairness in this legal process. For that reason, Mediator/Arbitrators typically hold certifications in one or both fields, along with substantial litigation experience to ensure procedural fairness, the rules of evidence and an in-depth appreciation of the applicable legislation governing family and divorce. Plus, all Mediator/Arbitrators are required to complete bi-annual training in family violence and power imbalances to carefully consider and monitor each couple’s suitability for this process as an alternative to court.
Lastly, no Mediation/Arbitration can be initiated without a Mediation/Arbitration Agreement reviewed by each spouse with their own lawyer who will advise them of the advantages and disadvantages of this option so that their decision is proper, voluntary and informed.
Given that most practitioners of Mediation/Arbitration are subject-matter experts, appeals of their Awards are generally entitled to significant deference by the courts [see Petersoo v. Petersoo, 2019 ONCA 624 and Patton-Casse v. Casse, 2012 ONCA 709].
Family Arbitrations are governed by the Arbitration Act, 1991, S.O. 1991, c. 17 and the Family Law Act, R.S.O. 1990, c. F.3. Where the Arbitration Act and Family Law Act conflict, the provisions of the Family Law Act prevail. Nonetheless, judges remain available to ensure that complaints regarding a Mediator/Arbitrator may be addressed.
Section 19 of the Arbitration Act requires the Mediator/Arbitrator to treat the parties equally and fairly and section 11 of the Arbitration Act requires the Arbitrator to report any possible bias or appearance of bias. Under section 46(1)(6) of the Arbitration Act, the court may set aside an Award if the party was not treated equally and fairly, was not given an opportunity to present their case or due to bias. If a party seeks to appeal an Arbitral Award, they may do so according to section 45 of the Arbitration Act to the Superior Court of Justice or to the Family Court and as defined in the Mediation/Arbitration Agreement. To ensure a specialized and tailored legal process for each family, sections 20 to 25 of the Arbitration Act grant the Arbitrator broad discretion with respect to the process for the Arbitration such as:
1. The time
2. The date
3. The place
4. The mode of hearing
5. The setting of timelines
6. The production of records
7. Pleadings and amendments
8. The format of presentation
9. The format for evidence
10. The process for submissions
At its core, Mediation/Arbitration empowers couples to tailor the legal process in a way that suits their specific needs. As a result, more couples today are choosing Mediation/Arbitration as the go-to process to achieve a fast, fair, and cost-effective divorce settlement.
Editorial note: This article was first published on LinkedIn in September 2025 and is republished here for reference.
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