Med-Arb in Ontario Family Law: How Hybrid Mediation-Arbitration Works

Mediation gives you control over the outcome but depends on both people reaching agreement. Arbitration guarantees a binding decision but hands that decision to someone else. Med-arb tries to capture the benefits of both: start with mediation, and if — and only if — some issues remain unresolved, move directly into arbitration to get a binding decision on what's left, without starting over with a new process or a separate court application.

This article explains how med-arb actually works in an Ontario family law context, and what to think about before choosing it.

How the Process Works, Step by Step

1. Agreement to proceed. Both people sign an agreement setting out how the med-arb process will run, including whether the same person will act as both mediator and arbitrator, or whether two different professionals will be used.
2. The mediation phase. The neutral helps both people negotiate directly, issue by issue — property, support, parenting, whatever is in dispute.
3. Resolved issues are recorded. Anything the couple agrees on during mediation is documented as they go, so it doesn't need to be revisited.
4. Unresolved issues move to arbitration. For whatever remains unresolved after a genuine mediation effort, the process shifts into arbitration — a formal, binding decision-making process, rather than negotiation.
5. The arbitrator decides. The arbitrator issues a decision on the outstanding issues, generally binding under Ontario's Arbitration Act, and must apply Canadian law in reaching it.
6. The full result is documented. The mediated agreement and the arbitrated decision together form the complete resolution of the file, rather than a separate court application being needed for the leftover pieces.

Same Neutral or Two Different People?

This is one of the most important design choices in a med-arb process:

• Same person as mediator and arbitrator. This preserves continuity — the arbitrator already understands the full history and positions — but raises a real concern: things said candidly during mediation, where the goal is compromise, could influence how that same person later decides the unresolved issues as arbitrator.
• Two different professionals. A different arbitrator, who wasn't involved in mediation, decides the leftover issues based only on the evidence and argument formally put before them, closer to how a fresh court process would work, but without the continuity benefit.

Couples should discuss this choice, and have it addressed clearly in their med-arb agreement, before starting, not partway through.

Why Couples Choose Med-Arb

• It guarantees an end point. Unlike pure mediation, it can't stall indefinitely if one issue proves impossible to agree on.
• It rewards genuine cooperation. Issues the couple can agree on stay private and self-determined, and only the genuinely stuck issues go to a binding decision.
• It avoids restarting the process. There's no need to abandon mediation and begin an entirely separate court application if talks stall on a handful of issues.

Things Worth Thinking About First

• The "shadow of arbitration" can change how people negotiate — some may hold back during mediation, anticipating a later arbitration, which can undermine the openness mediation depends on.
• If using the same neutral for both roles, be clear in advance about what information from mediation the arbitrator can and cannot rely on later.
• Like other forms of arbitration, med-arb's arbitrated portion is generally binding, with narrower appeal rights than a court decision, so it isn't a low-stakes trial run.

Is Med-Arb a Good Fit for You?

Med-arb tends to work best when both people:

• [ ] Are willing to negotiate honestly, at least on some issues, rather than refusing to engage at all
• [ ] Want a guaranteed resolution and are uncomfortable with mediation potentially stalling indefinitely
• [ ] Are comfortable giving up some appeal rights in exchange for privacy and a faster, more flexible process
• [ ] Can agree, before starting, on the model — same neutral or two different professionals — so there's no dispute about fairness partway through
• [ ] Don't have a safety dynamic, such as family violence or a significant power imbalance, that would make joint mediation sessions inappropriate

Where family violence or a serious power imbalance is present, mediation-based processes — including the mediation phase of med-arb — need careful screening, and may not be appropriate at all. A lawyer can help you assess whether med-arb fits your specific situation before you sign an agreement to use it.

Frequently asked questions