Canada: Effective Use Of Mediation-Arbitration

Last Updated: December 6 2016
Article by Lorne Wolfson

Over the past 15 years, mediation- arbitration (or "med-arb") has grown into a popular method of resolving family law disputes. As its name suggests, med-arb combines the most effective features of both mediation and arbitration. Why has med-arb become so popular? When does it work and when it does not? What are the ethical and practical issues that must be considered?

What is Med-Arb?

Med-arb is a hybrid process in which the parties select a neutral to mediate the case. If the mediation is successful, then the case is over; however, if the mediation is unsuccessful, the parties then proceed with an arbitration. In most cases the arbitrator will be the same person who conducted the mediation, although the parties can agree on a new person to arbitrate.

In Ontario, family law arbitrations are governed by both the Arbitration Act and the Family Law Act. While many of the rules that govern commercial arbitrations are also applicable to family law arbitrations, there are specific provisions that only apply in the family law context (for example, what matters can be arbitrated, the applicable law, the contents of arbitration agreements and enhanced supervisory powers of the court).

The starting point for any mediation-arbitration is the med- arb agreement. That agreement commits the parties to the med- arb process. Unless both parties consent, neither party can abandon that process. That agreement also identifies the mediator/arbitrator and provides for the issues to be determined and the procedure to be followed. A lawyer's certificate of independent legal advice must be completed confirming that each party understands the process and is participating willingly. The mediator/ arbitrator also signs a certificate confirming that he or she has the appropriate qualifications, that the parties have been appropriately screened, and that he or she will conduct any arbitration in accordance with the Arbitration Act.

Before entering into med-arb, each party must be screened for domestic violence or power imbalance. The Arbitration Act does not specify who conducts the screening or how the screening is to be conducted. The mediator/arbitrator can conduct the screening personally or delegate the task to a third party.

Once the screening has been completed and the med-arb agreement executed, timelines are set for the exchange of briefs and the mediation itself. Subject to a few differences discussed below, the mediation in a med-arb is no different than a stand alone mediation. If the mediation is successful, the terms of the settlement are incorporated into minutes of settlement or a memorandum of understanding or a separation agreement. If the mediation is unsuccessful with respect to some or all of the issues, timelines are determined (typically at a pre-arbitration meeting) for the various steps preceding the arbitration and for the arbitration itself.

Why Do Parties Choose Med-Arb?

There are a number of reasons why parties choose med-arb. They include the ability to select the neutral, the confidentiality of the process, accessibility of the neutral, the ability to determine the procedure, savings of time and cost and the guarantee of finality. Unlike the court process, a mediation can often be scheduled within six weeks of the initial contact and an arbitration (if required) can often be completed within two or three months of the mediation.

The most compelling reason why parties choose med-arb is its success rate. Between 80% to 90% of med- arbs settle in the mediation phase. Settlements arrived at in mediation take less time and money and are much more likely to be adhered to by the parties than decisions imposed by the courts. Finally, parties who settle in mediation are more likely to preserve a positive relationship which ultimately benefits both the parties and their children.

Cases That Are Not Suitable

Not every case is suitable for med-arb. Where there is a history of domestic violence or power imbalance that cannot be remedied by the presence of counsel or protective procedures, med-arb may not be appropriate. Where the issues are beyond the arbitrator's jurisdiction, where there are third parties who need to be bound by the process, where the parties do not have sufficient financial resources, or where enforcement of an arbitral award is expected to be problematic, med-arb may not be the right choice. Where disclosure is a problem, it may make more sense to defer entering into med-arb until disclosure has been obtained (through the courts or otherwise).

Ethical and Practical Problems

Med-arb is not free of both ethical and practical problems. Its critics say that allowing the mediator (who has heard settlement discussions and confidential communications from a party that are not disclosed to the other party) to later become the arbitrator will create, if not actual bias, at least a reasonable apprehension of bias in one or both of the parties. Its critics also say that med-arb is inherently coercive: that parties will feel pressured into accepting the mediator's recommendations because he or she knows that the mediator will later become the arbitrator if there is no settlement in mediation. While these criticisms can be addressed by providing in the med-arb agreement that the mediator and arbitrator shall be two different people, doing so undermines much of the efficiency of the med-arb process. The best answer to these criticisms is that med-arb is a voluntary process that parties should only enter after a careful explanation and understanding of the process. For most parties entering into med- arb, their first priority is an early settlement and these criticisms of the process are of little concern.

Nonetheless, when the mediator and arbitrator are the same person, he or she must take certain precautions to ensure the fairness and integrity of the process. While in the mediation phase, the neutral should avoid giving any evaluations of the case that might suggest that he or she has pre-judged the matter.


Med-arb is not the solution to every family law case. However, for parties looking for an early and economic resolution, easy access to and control over the choice of the neutral and the process, confidentiality and finality, med-arb offers a process that appeals to many separating spouses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Lorne Wolfson
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions