Mediation-Arbitration (Med-Arb) for Family Disputes in Ontario

Some separating couples want a faster, more private route than court, but they also want a firm answer if they cannot agree. Mediation-arbitration, often called med-arb, is a hybrid that tries to offer both: a chance to negotiate, and a decision-maker if negotiation fails.

It sounds simple, but it raises real questions. Can the same person help you negotiate and then decide? What protections apply? What happens if the other person ignores the result? This article explains the main points in Ontario so you can ask better questions before you sign anything.

What med-arb means in plain words

Ontario describes mediation as a negotiation between two people with help from a mediator, who does not take sides, make decisions or give legal advice. Arbitration is different: an arbitrator hears the dispute and makes a decision, called an award. Med-arb tries to link the two so that issues you cannot settle by negotiation are decided without going to court.

There is an important legal limit. Under the Arbitration Act, 1991, members of an arbitral tribunal must not conduct any part of the arbitration as a mediation, conciliation or similar process that might compromise their ability to decide impartially. How a particular med-arb arrangement is set up in practice depends on the agreement and the professional involved, so a lawyer can confirm whether a proposed structure fits within that rule.

The main risks to think about

The biggest concern is impartiality. If someone hears your private concerns and compromise offers during mediation, you may worry about how that affects their later decision. That is the very risk the Arbitration Act, 1991 is aimed at.

• Candour: you may hold back in mediation if the same person could later decide the issue.
• Power imbalance: one person may feel pressured to agree, which is why screening matters (see below).
• Limited appeal rights: an award is not simply reviewed again from scratch, and appeals go only on a question of law with leave.
• Religious principles: an award based on religious principles is not a valid family arbitration award.

Rules that apply before and during arbitration

Family arbitration has built-in safeguards. Before any family arbitration starts, a professional trained to recognize the signs of domestic violence and power imbalances must interview each party separately, and the screening report must be given to the arbitrator before the arbitration can begin.

An agreement to arbitrate a family dispute is unenforceable unless it is entered into after the dispute has arisen. So a clause in a marriage contract promising to arbitrate future disputes will not do the job.

There is an exception for a secondary arbitration conducted under a separation agreement, court order or earlier arbitration award: the parties do not need to get independent legal advice again.

Enforcing an award, or challenging it

A party entitled to enforcement may apply to the court. Support provisions can be filed using Form 26D with the Superior Court of Justice or the Family Court, together with the legal advice certificates and the arbitration agreement. Awards cannot be enforced unless both sides received legal advice.

If you disagree with an award, a party may appeal to the court on a question of law with leave. Family arbitration awards are appealed to the Family Court or the Superior Court of Justice, and parties cannot contract out of this right. An appeal or an application to set aside must be started within 30 days after the party receives the award. That is a short window, so do not wait.

If part of your arrangement ends up in a separation agreement, it must be in writing, signed by the parties and witnessed, or it is unenforceable. A court may also set aside a domestic contract if a party failed to disclose significant assets or did not understand its nature or consequences.

What to do next

• Ask exactly who would act as mediator and who would act as arbitrator, and whether they are the same person.
• Ask how the arrangement fits with the limit on arbitrators mediating.
• Gather full financial information so nothing significant is left undisclosed.
• Get independent legal advice before you sign, as it is required for an enforceable arbitration.
• Raise any safety concerns about screening before the process starts.
• Note the 30-day deadline for appeals or set-aside applications once an award is made.

Because each med-arb arrangement is different, speaking with a family lawyer before you commit is the best way to understand what you would be giving up and gaining.

Frequently asked questions