Introduction:
Breakdown of family relationships can be hard, not only on separating spouses but especially on their children. Difficult issues must be resolved regarding parenting, financial support, and property. While not all family breakdowns are contested, many result in disputes between former spouses. The question then becomes: do these disputes always have to be resolved by the Courts?
The answer, increasingly, is no. Even the Courts acknowledge that many family law disputes are best resolved by the parties themselves, outside of Court. Sometimes, former spouses are able to resolve issues informally, through direct discussion. In many cases, however, third-party assistance is required. This is where Alternative Dispute Resolution, or ADR, becomes relevant.
In this article, we focus on Mediation/Arbitration as a family law ADR process in Alberta, and in particular whether agreements reached or decisions made through that process are legally binding.
Table of Contents
What Is Mediation / Arbitration?
Mediation and arbitration are distinct processes, though they are often discussed together.
Mediation is an informal, voluntary process in which a neutral third party, the mediator, assists the parties in trying to reach their own agreement. The mediator does not impose a decision. The goal is to help the parties communicate, identify common ground, and negotiate a resolution.
Arbitration, by contrast, is a more formal process, though still less formal than Court. An arbitrator, appointed under the provincial Arbitration Act, hears evidence and submissions from the parties and then makes a binding decision, known as an Award.
Mediation / Arbitration combines these two processes. The same neutral third party first attempts to assist the parties in reaching agreement through mediation. If mediation is unsuccessful, the process transitions to arbitration, and the arbitrator makes a binding decision on the outstanding issues after receiving formal submissions.
Benefits of Mediation / Arbitration
Mediation / Arbitration offers several advantages over proceeding directly through Court. These benefits, commonly emphasized in Alberta family law education and practice, include that the process:
- is useful when informal negotiations break down
- is voluntary
- is private and confidential
- can reduce tension and confrontation
- promotes understanding between the parties
- is educational
- is more informal than Court
- often results in a high rate of resolution
For many families, these features make Mediation / Arbitration an effective and practical option.
But Is It Binding?
An important question remains. Are agreements reached, or decisions made, through Mediation / Arbitration final and binding?
With respect to mediated agreements, Alberta Courts have made it clear that such agreements can be binding, even if they are not immediately formalized in a written contract, provided they are entered into freely, voluntarily, and with legal advice.
In Toliver v. Koepke [2016 ABQB 452], the Alberta Court of Queen’s Bench stated (at para. 63):
“I am satisfied that Mr. Koepke, represented by experienced counsel in negotiating and settling on the terms of the Agreement, was aware of the nature and effect of the Agreement, understood that it would settle all matters between himself and Ms. Toliver, and that he was agreeing to the terms of the Agreement freely and voluntarily without any compulsion from Ms. Toliver or any other person.”
With respect to arbitration awards, the Courts have been even clearer. Arbitration decisions are intended to be final, subject only to limited grounds of review.
In Alan v. Elliott [2019 ABCA 290], the Alberta Court of Appeal stated (at para. 30):
“Kawchuk held that it is the policy of courts to encourage dispute settlement. This policy militates against setting aside an arbitration award except in the most compelling of cases. In light of the history of this arbitration, granting permission to appeal will not encourage dispute resolution. Further, there are no compelling reasons to grant permission to appeal in this case.”
In short, arbitration awards are binding and will not be easily disturbed.
Other Out-of-Court Processes
While this article focuses on Mediation / Arbitration, it is not the only out-of-Court option available in Alberta family law matters. Other processes may include the involvement of Dispute Resolution Officers, Parenting Coordinators, and other structured forms of ADR, depending on the nature of the dispute.
Final Thoughts
So, is ADR, including family law Mediation / Arbitration, a better way to resolve disputes arising from family breakdown than going to Court? Generally, yes. That said, some family law disputes will still require Court intervention.
Mediation / Arbitration offers families a flexible, private, and effective mechanism to resolve disputes while maintaining control over both the process and the outcome. When used appropriately, it can reduce conflict, promote resolution, and provide binding and enforceable results without the time, cost, and adversarial nature of Court proceedings.
