How to Hire an Arbitrator or a Mediator

SUGGESTIONS FOR PEOPLE INVOLVED IN FAMILY LAW DISPUTES

When contacting an arbitrator, you should assume that they will share many of the details about how they were contacted, including providing a copy of your email or a description of the content of your conversation. He or she will want to be completely transparent about everything. Ask yourself: Would the other side think your communication with the arbitrator or mediator was balanced and fair? Would the other side think you were trying to gain an advantage? Would the other side believe that the arbitrator or mediator or arbitrator is likely to remain independent and impartial?

The best way to hire an arbitrator or mediator is through a lawyer, if you have one. Let your lawyer take care of describing the legal issues and the history of the dispute to us. Often the lawyers for each party will talk to each other first, and either write a joint email to the arbitrator or mediator, or at least copy the other lawyer on the email and say that they both agree to hire the arbitrator or mediator.

If you can’t do that, the next best thing is for both of you — you and the other person involved in your dispute, that is — to sent the arbitrator or mediator an email together. You should each provide your contact information and both of you should write your names at the end of the email. You might want to give a short description of the nature of the problem, like “we can’t agree about parenting issues” or “we have a problem about spousal support” for example.

If that isn’t possible either, then write to the arbitrator or mediator yourself, remembering that the other person will get a copy of your email and will be reading it very carefully for anything they think might be unfair or untrue. What we’d really like to see is an email like this:

“My name is Shirley Smith. I am involved in a parenting dispute with Sam Smith about our two children, Sarah Smith and Stanley Smith. I would like to know whether you are able to arbitrate/mediate our dispute in the next two or three months.

“I do not have a lawyer and can be reached at ___________________

“Sam also does not have a lawyer. He can be reached at ___________________

“I look forward to hearing from you as soon as possible, and to learning more about your rates, payment and retainer expectations.”

That sort of email would be ideal. You haven’t told anything about the nature of your disagreement, except that it involves the parenting of two children. You haven’t criticized Sam or given any other description about the circumstances that might make Sam feel that you’d tried to influence the arbitrator or mediator in your favour. You’ve also given a sense of the timeline in which you’d like to wrap everything up, and that’s usually very helpful.

Now if you contact the arbitrator or mediator by telephone, don’t be surprised if they interrupt you and ask you to put it in writing, copied to the other side. They’re not trying to be rude, they just want to protect the other person’s perception of the arbitrator/mediator’s neutrality and their faith that they will resolve your dispute fairly.

SUGGESTIONS FOR LAWYERS

There’s nothing unethical about contacting us on an ex parte basis, however the same concerns about the perception of tainting and bias remain and it’s important to keep your conversation with the arbitrator or mediator brief, factual and to the point. Counsel typically make this sort of contact to learn about rates, document review processes and participation letters, canvas for conflicts and check for availability; all reasonable information to seek. (In fact, finding a date for an arbitration or mediation that works for both lawyers and both parties sometimes dictates the choice of arbitrator or mediator. You can check availability in our public calendar.)

If the arbitrator or mediator should be opening a file, the basic information they’d like to get, all without impacting their impartiality, includes:

 the names of each lawyer and their telephone numbers and email addresses;

 the names of the parties;

 the names and ages of the parties’ children for family matters;

 a neutral description of the essence of the conflict, such as “a mobility dispute,” “the appointment of a third-party guardian,” “supervised contact and a trust claim against property” “land-lord/tenant dispute” “contract dispute” and so on -- no more details of the dispute than that;

 a neutral description of any pending events such as hearings or trials, the expiry of limitation periods or agreed deadlines, and any circumstances giving rise to urgency; and,

the name of the town or city in which any in-person conferences, meetings or hearings are likely to be held.

If contacting in writing, please copy opposing counsel on your email, and the arbitrator or mediator will address their reply to both of you.

Please note that all communications with the arbitrator or mediator should be copied to opposing counsel or, if unrepresented, the opposing party, and that ex parte oral communication should be avoided to the extent reasonably possible.