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Frequently Asked Questions – FAQ
What is the difference between mediation and arbitration?
The principal difference between mediation and arbitration is the concept of the “Third Party Neutral.” In mediation a principal concern of the mediator is to ensure the parties at all times that the mediator is strictly neutral in relation to the issues and the positions of the parties respecting such issues, and does not suggest to the couple a basis for resolving the issues, but assists the parties through facilitative communication skills to achieve their own resolution of such matters. This “client-centered” approach can be jeopardized if during the course of the mediation the mediator puts forward suggestions as to possible resolutions of certain issues which one or both of the parties interpret as an indication that the mediator is no longer neutral. Such suggestions would also require knowledge and expertise of the underlying family law principles that define a reasonable range of acceptable outcomes, which knowledge and expertise many mediators do not possess. While arbitrators remain impartial and fair, they are not strictly speaking “neutral,” in so far as they draw upon their family law knowledge and experience to assist a couple in establishing a framework or range of otherwise acceptable outcomes in which the couple can negotiate a specific resolution of their issues by consent and in a manner which best meets their respective needs and interests and of their children. As with mediation, non-binding arbitration permits the parties to accept or reject the arbitrated outcome.
What is the typical cost of a mediation or arbitration?
Mediation or arbitration is a matter private for services between the parties and the mediator or arbitrator. Typically, the mediator or arbitrator charges an hourly rate for their services, in relation to which each party typically pays one-half of the cost (although there is no prohibition on the cost of the mediation or arbitration being paid for by one of the parties only if that is was agreed to). The hourly rate of an arbitrator or mediator very with their seniority and experience, but is not untypically in the range of $120 to $150 per hour. This nonetheless often compares favourably with the cost of a lawyer's hourly rate for their time which can often be twice such amount, dependent on their experience and seniority.
Are mediations or arbitrations ever conducted on the basis of a fixed fee or cost?
Because the services of the mediator or arbitrator are a matter of private contract between the parties and the mediator or arbitrator, it is open to a mediator or arbitrator to charge for their services on the basis of a flat or fixed fee if that is agreeable between the parties and the mediator or arbitrator.
Do you provide mediation or arbitration services on the basis of a flat fee or fixed cost?
Yes. Typically, to provide the parties with the security of knowing the limits of their exposure for the cost of pursuing a non-adversarial resolution of family law issues, and without the need to resort to the courts, I am prepared to provide a fixed fee or flat fee contract for services for any arbitration or mediation which the parties wish to engage my services for.
Is there any limitation on the type of issues can be resolved by either mediation or arbitration?
There is no practical limit as to the family law issues that can be resolved by either mediation or arbitration, including spousal and child support, custody of and access to children, and division of property and apportionment of debts acquired during a relationship. Some issues are capable of resolution more quickly and with less complexity, such as child support, which is largely governed by mandatory provisions of the Federal Child Support Guidelines; others by their nature, such as spousal support and pension division, may require additional time and expertise to resolve, due to the greater complexity of the principles that govern such issues as well as the particular facts and circumstances of each case.
Are there any types of cases issues for which mediation or arbitration are unsuited?
Both mediation and non-binding arbitration are consensual processes which require the ability of both parties to negotiate on a level playing field with one another. Cases involving domestic violence or abuse, or where the dynamics of a relationship are such that a major power imbalance exists between the parties, it is not an appropriate case for either mediation or non-binding arbitration. The determination of the suitability of a case and issues for either mediation or non-binding arbitration is made during the pre-mediation interview process.
Is there a cost associated with an initial consultation to determine whether the case is suitable for mediation or arbitration?
There is no charge for an initial telephone consultation to discuss the possibility of either mediation or arbitration of your family law issues. There is a nominal charge associated with conducting pre-mediation-arbitration interview of each party, following which a written agreement is prepared which both parties must sign and which sets out the terms and conditions, including the terms of payment, of the contemplated mediation-arbitration services.
What is the typical cost of a mediation or arbitration?
The answer is dependent on the number and complexity of the issues which require resolution. A single issue, such as variation of the amount of support be paid based on either a favourable or unfavourable change in the financial circumstances of the payor, is a matter capable of resolution in as little as an hour or two. Multiple issues, which often arise upon an initial breakdown of relationship and separation, such as custody of and access to children, interim occupation of a family home pending it’s disposition, servicing of family debt after separation pending their disposition, determination of an appropriate amount of child support or spousal support where applicable, and the like, may require more time and effort to resolve amicably. From the simplest to the most complex case for mediation or arbitration, following a pre mediation-arbitration interview with each of the parties, it should be possible for the mediator or arbitrator to provide an estimate of the expected cost of the mediation or arbitration, whether such is based on an hourly rate for services or on a flat or fixed fee basis.
If I agree to attend mediation or arbitration am I bound by the outcome?
What happens if the mediation-arbitration is unsuccessful?
If the parties cannot reach agreement by consent, then of necessity one, the other, or both will be required to retain the services of a lawyer and pursue resolution of the issue(s) in court. Although a lawyer with a private family law practice, once retained to act in a mediation-arbitration such involvement would preclude my further involvement as legal counsel for either party should the mediation-arbitration be unsuccessful. The terms of the mediation-arbitration agreement make clear that the information and discussions at the mediation-arbitration remain confidential to these processes, and cannot be used in any subsequent court proceeding by either party.
Is there such a thing as binding arbitration of family law issues?
Although less common in New Brunswick, in other jurisdictions such as Ontario and British Columbia where there are long waits for a date for a court hearing to adjudicate the resolution of family law issues, some parties to a commenced court proceeding may elect instead to submit the issues in the case to binding family law arbitration. Such arbitrations are often conducted much the same way as court hearings, with the presentation of evidence, the hearing of witnesses and their cross examination, followed by written or oral submission by counsel to the arbitrator before he or she renders a binding decision, which is typically subject only to such rights of appeal as are set out in the arbitration agreement or under governing legislation, which in New Brunswick is the Arbitration Act, RSNB . c. A-10.1. The choice of arbitrator in such case is usually a senior family law lawyer, or perhaps a retired judge, the principal consideration for which is the need and desire to have a more timely resolution of an otherwise contested and adversarial case. It is not, typically, a facilitative or consensual process. Binding arbitration is not part of the mediation arbitration services offered by this office.
Is there any accreditation or certification required in order to act as a mediator or arbitrator?
There is no mandatory accreditation or certification for family law mediators or arbitrator's in New Brunswick at the present time. Some mediators choose to obtain accreditation on a voluntary basis, the two principal bodies of which in Canada are the ADR Institute of Canada and Family Mediation Canada. Otherwise, it is up to the parties choosing a mediator or arbitrator that such person has the necessary knowledge, skills, and experience, to assist and facilitate with a mediated or arbitrated resolution of the issues the couple bring to the mediation-arbitration.
Are you a certified family law mediator?
Although I have successfully completed 80 hours of mediation training with the Canadian Institute for Conflict Resolution and am in the process of seeking accreditation as a certified family law mediator with Family Mediation Canada, I do not at present have such accreditation. However, my 20 years of experience as a family law lawyer in both British Columbia and New Brunswick, as well as my experience as a former Family Court Administrator for the Judicial District of Fredericton, uniquely qualifies me to principally provide nonbinding arbitration services to couples who wish to resolve their issues by consent, but who may be unclear as to the governing principles that establish a reasonable framework of otherwise acceptable outcomes in which they might negotiate a consensual resolution of their family law issues. If the couple wishes to pursue mediation, after a pre-arbitration interview and an initial joint session with me as arbitrator, then an appropriate referral can be made to a mediator.
Where are your offices located?
Our offices are located suite 204-181 Westmorland Street, Fredericton, New Brunswick, E3B 3L6. We offer mediation-arbitration services in the city of Fredericton and by appointment in Saint John and Moncton.
Do you offer mediation services in the French-language?
At the present time, we are only able to offer English-language mediation-arbitration services, but would be happy to provide a referral to another service provider for those requiring mediation-arbitration services in the French language.
Where do I go from here?
If in discussions with the other party, you are mutually interested in saving time, money, and reducing conflict, in the resolution of family law issues arising from the breakdown of a relationship, you should call our office to determine whether your case and issues are appropriate for either mediation or arbitration.