Alternative Dispute Resolution (ADR)

When a couple separates, several legal issues arise that must be resolved. These issues typically include child custody and access, support payments, and property division. You can always have a court make these decisions for you. However, more and more separating couples are using alternative dispute resolution (ADR) to solve their family law problems. This article will introduce you to the multitude of ADR methods available for family law disputes.

Why use ADR?

If ADR is appropriate for your case, there are multiple reasons why it is superior to the court process. These reasons include:

  • The court process takes an extremely long time. From filing the initial application, most people wait at least a year before attending trial.
  • The court process is not confidential. If a judge makes a written judgement about your case it will include your full name, all the intimate details of your case, and be publically available.
  • If you use a lawyer, the court process is extremely expensive. Even in the simplest disputes, there is will be a number of documents for your lawyer to prepare and multiple court appearances he or she will attend.
  • If you don’t use a lawyer, you could be disadvantaged by not knowing how the court system works.

Even if you and your former partner cannot solve the entirely of your family law dispute through ADR, you may be able to solve part of it. It is common reach a settlement on some family law issues prior to reaching the trial phase of court.

ADR Methods

Negotiation

Negotiation is the most informal method of ADR. It simply involves parties talking to each other in order to form an agreement. In many cases, one or both of the parties’ lawyers may be present in the negotiation. Sometimes, when former partners no longer wish to see each other, each will provide their lawyer with instructions and the lawyers will negotiate with each other.

After both parties have come to a decision on a particular issue in a negotiation, the decision should be written down and signed to prevent future disputes on that issue. Once the negotiation is complete, the parties should have a formal separation agreement drafted that each will sign in front of a witness.

Parties can choose to negotiate without lawyers, however, it is recommended that they seek legal advice prior to negotiation. A lawyer can provide family law education and offer an opinion of what kinds of orders a court would make in an individual case. This allows a client to evaluate whether an offer made by a former spouse is fair and reasonable. A lawyer is also helpful in drafting a final separation agreement that contains both the parties wishes.

Some Advantages of Negotiation are:

  • Choices: You get some power to make decisions on what will happen going forward. Therefore, you can focus on and emphasize the issues that are important to you.
  • Cost: If you are your partner can negotiate without lawyers, negotiation is by far the least expensive option. Even with lawyers, negotiation can be considerably faster than the court process.
  • Time: Negotiation can happen as soon as you are ready. If you are your partner are able to set your feeling aside and communicate in good faith, it can also be finished fairly quickly.
  • Ability to Opt-Out: If you feel negotiation is not working for you and your former partner, you can opt-out at any time.
  • Confidentiality: Negotiation is as private as the parties make it. So long as you and your former partner don’t go to court in the future, the contents of your separation agreement will not be publicly disclosed.

NOTE: There are certain cases where negotiation between partners without lawyers is never appropriate. (For example: when a former partner is controlling, abusive and/or violent.)

Mediation

Mediation is similar to negotiation. It allows for former partners to negotiate with each other by employing a mediator as a neutral third party. Mediators use a variety of techniques to help facilitate communication and assist former partners to come to a negotiated agreement, that will be drafted into a separation agreement. To use mediation, the parties need to agree on the specific mediator and enter into a written mediation agreement. Like negotiation, mediation can be done by the two parties and a mediator alone, or can include the parties’ lawyers.

Family mediators in Ontario can be accredited by two different organizations, Family Mediation Canada (FMC) and the Ontario Association of Family Mediators (OAFM). Typically, mediators are trained lawyers, social workers, or psychologists prior to obtaining their certification.

Some Advantages of Mediation are:

  • Choices: You get some power to make decisions on what will happen going forward. Therefore, you can focus on and emphasize the issues that are important to you.
  • Cost: Both parties pay the mediator for their time. Each party may also pay an individual lawyer as well. This means mediation may be slightly more expensive than negotiation, but it is still generally less expensive than going to court.
  • Time: Mediation can begin as soon as a mutually agreed on mediator is available and both parties are ready. Therefore, it is typically much faster than court.
  • Ability to Opt-Out: If you feel mediation is not working for you and your former partner, you can opt-out at any time.
  • Confidentiality: Mediators will often sign a closed mediation agreement in conjunction with the parties. This means that even if mediation does not work out, the mediator will not disclose any evidence to the court. Like negotiation, if a mediation results in an agreement, and that agreement is never challenged in court, it will stay private.

Arbitration

Arbitration is like a simplified version of court. The parties must mutually agree on an arbitrator to make a decision for them and sign an arbitration agreement. This agreement is binding on the parties and requires they follow all the orders the arbitrator makes in their case. Unlike negotiation and mediation, if the parties agree to arbitration, neither can stop the process nor opt-out of the arbitration once it has begun.

Some Advantages of Arbitration are:

  • Cost: Even though you and your former partner need to pay the arbitrator to make a decision, arbitration may still be less expensive than court. This is because it requires less documents and appearances compared to the court process. Therefore, it often takes a lawyer considerably less time to prepare and present a case for arbitration as compared to court.
  • Time: Because arbitrators are private as opposed to public, you can usually find an arbitrator that can accommodate your case much more quickly than the courts.
  • Confidentiality: Unlike a court decision that will be available to the public, an arbitrator’s final decision will be confidential so long as parties don’t ever need to bring it to the court for it to be enforced.
  • Finality: Unlike negotiation and mediation, where there can be uncertainty as to if or when something will be agreed upon, arbitration allows you to know when a final decision will be made.

Mediation-Arbitration (Med-Arb)

Mediation-Arbitration (Med-Arb) is an ADR technique that uses both mediation and arbitration to solve a legal dispute. In the majority of cases, the same person will act as both the mediator and the arbitrator. Both parties must agree on the mediator-arbitrator and enter into a binding med-arb agreement. The parties are then given the chance to solve their problems through mediation. If the mediation fails, the parties then enter arbitration where a final binding decision is made. In some cases, the parties will solve part of their dispute in mediation, and then have the other portions of their dispute solved by arbitration.

Some Advantages of Med-Arb are:

  • Choices: You get some power to make decisions on what will happen going forward. Therefore, you can focus on and emphasize the issues that are important to you.
  • Incentive to Settle: Because parties cannot opt-out of arbitration if mediation fails, this often provides incentives for people to come to a settled agreement during the mediation portion.
  • Cost: While you will have to pay your mediator-arbitrator, this approach can still be less expensive than court due to a less onerous preparation process. Former partners who can settle fairly quickly at the mediation portion can save a considerable amount of money.
  • Time: You can start as soon as your mediator-arbitrator is available. You can set a time limit to the mediation portion or end the mediation if it seems it will not result in an agreement. Once the mediation is over, a time may be set for arbitration. Because med-arb is a private process, it will in general be much faster than the court.
  • Confidentiality: The mediation can be closed, so no facts will be reported outside it by the mediator. The arbitrator’s decision will be private so long as it is not brought to court in the future to enforce it.
  • Finality: Because arbitration provides a final decision, you will have some idea of what point in the future your problems will be solved.

Collaborative Family Law (CFL)

Some Advantages of Collaborative Family Law are:

  • Choices: You get some power to make decisions on what will happen going forward. Therefore, you can focus on and emphasize what is important to you.
  • Interdisciplinary Approach: CFL will generally involve multiple professionals, each with specific expertise relating to your situation. Instead of just having legal professionals involved, you will also likely be advised by financial and parenting experts.
  • Cost: Both parties must pay their lawyers and whatever additional professionals they engage in the process. Like all the other ADR processes, you will be paying for the time of whatever professionals you engage. If you can come to a resolution quickly, CFL can be extremely inexpensive. As a general rule, CFL will be less expensive than court.
  • Time: CFL can begin as soon both parties and their lawyers are ready. Therefore, it is typically much faster than court.
  • Ability to Opt-Out: If you feel CFL is not working for you and your former partner, you can opt-out at any time.
  • Confidentiality: CFL is as private as the parties make it. So long as you and your former partner don’t go to court with your separation agreement in the future, what occurred in your CFL process will be kept off the public record.

A Final Note

In most cases, ADR is less expensive and faster than going to court. However, if no resolutions are reached, ADR can simply add to your expenses and delay the court process further. Therefore, before deciding on an ADR method, consult a qualified lawyer in your community to help you choose the best method for your situation.

Disclaimer: This blog is made available by Jackson Law Professional Corporation for educational purposes only. Its purpose is to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog, you understand there is no lawyer-client relationship between you and Jackson Law Professional Corporation or any of its employees or representatives. This blog should not be used as a substitute for competent legal advice from a licenced lawyer in your jurisdiction.