Training required to be a family arbitrator

The regulation under the Arbitration Act, 1991 , requires a family arbitrator to have the training set out on the Ministry of the Attorney General's website.

This training is required by April 30, 2008, or before the arbitrator conducts a family arbitration after that date. Family arbitration awards given after that date by arbitrators without this training will probably be unenforceable.

1. Screening for domestic violence and power imbalances

There is no prescribed method of screening for family arbitration and no prescribed screening report. There is, however, an obligation on family arbitrators to ensure that parties have been screened for power imbalances and domestic violence as these relate to the arbitration process.

Accordingly, all family arbitrators must have received at least a training program of 14 hours (all taught in a week or less) in screening parties for domestic violence and power imbalance. The training should be provided by a reputable provider and include attention to most or all of the following elements:

  • the nature and extent of domestic violence
  • the nature of the arbitration process and how it differs from mediation or direct negotiations
  • the roles and responsibilities of the screener
  • how to screen for abuse and power imbalance
  • the use of one or more tools for screening, including in an arbitration context
  • the form and content of screening reports
  • limitations of screening techniques
  • the effects on children of exposure to domestic violence
  • how the best interests of the child are affected by domestic violence
  • how to identify concerns of people from diverse cultures
  • how to determine when arbitration is or is not appropriate, and how to develop options for proceeding with arbitration when arbitration would be appropriate with safeguards in place
  • how to adapt parenting plans when domestic violence is present
  • knowledge of community resources to deal with domestic violence.

This training should follow the principles set out in the Ontario Association for Family Mediation's Policy on Abuse, adjusted for use in arbitration. The training is expected to include a detailed review one or more of the following "tools" or related or equivalent tools for screening, together with a discussion of their relevance and application to the arbitration process:

  • Ellis and Stuckless, Domestic Violence Evaluation (DOVE)(2006)
  • Michigan Supreme Court, Domestic Violence and Child Abuse/Neglect - Screening for Domestic Relations Mediation (2006)
  • Linda Girdner, Conflict Assessment Protocol (CAP): Screening for spouse abuse in divorce mediation (1990)
  • Paul Charbonneau, Maine Court Dispute Resolution Service: Screening for Domestic Violence and Abuse in Domestic Relations Mediation: Screening and Assessment Guidelines (1997)
  • Peter Jaffe, Children of Domestic Violence: Special Challenges in Custody and Visitation Dispute Resolution (1996)
  • Erickson and McKnight, Mediating spousal abuse divorces

The law does not currently require particular training or background for people who are called on to screen for domestic violence and power imbalances for parties contemplating family arbitration. Nor does it prescribe the form and content of the screening report to be delivered.

However, the screeners should ideally have taken similar training and should use similar tools to those taken and used by arbitrators. They should understand the application of screening tools to the arbitration process. This will ensure that they can be helpful to the parties that need screening and to arbitrators who must consider their reports.

2. Ontario family law

All family arbitrators who are not members of the Ontario Bar or another Canadian bar must complete 30 hours of training on Ontario family law. While all of this need not be taken at one time, there are certain core competencies that would benefit from being learned as a package.

It may also be appropriate to adjust the content of the training to reflect the kind of practice that the arbitrator anticipates doing. All arbitrators are, however, likely to benefit from an appreciation of the main areas of family law. This training may allow an arbitrator to recognize issues when they are presented, even if the issues are collateral to the main subject of their arbitration or outside their specialty. An arbitrator planning to expand the scope of his or her practice should ensure appropriate training for the new areas of concentration.

The training in law should be provided by a recognized source of such training. The Ministry recognizes any accredited Canadian law school, any accredited Ontario community college and private courses offered by:

  • Members in good standing of the Ontario Bar who practise primarily family law
  • Recognized organizations offering continuing legal education, including the Law Society of Upper Canada and the Ontario Bar Association
  • Recognized dispute resolution organizations, including the ADR Institute of Ontario and the Ontario Association for Family Mediation.

Members of the Ontario Bar who arbitrate family disputes should ensure they are sufficiently familiar with family law to fulfil their professional obligation to provide services competently.