ALTERNATIVE DISPUTE RESOLUTION

Author: Lailna Dhaliwal LLP |

[Please be advised that the information provided is not to be constituted as legal advice]

Alternative dispute resolution (ADR) is the resolution of disputes by means other than traditional litigation.
In family law, ADR generally involves participation in one or more of the following:

  • Mediation
  • Arbitration
  • Mediation-arbitration

MEDIATION

Mediation is a method of dispute resolution whereby the parties retain a third-party professional to assist them in reaching an agreement. The mediator’s role is to listen to both parties and try to help them reach their own agreement.

The purpose of mediation is to assist the parties to accept the realities of their respective situations, understand the underlying interests of the opposing party, and try to reach agreement about how to settle outstanding differences.

There are two types of mediation in family law:

  • Open Mediation
  • Closed Mediation

Open mediation means that at the conclusion of the mediation, the mediator files or prepares a full report and is free to include anything relevant to the matter. Evidence of anything said or of any admission or communication made in the course of the sessions is admissible in a proceeding whether the clients consent or not.

Closed mediation means that at the conclusion of the mediation, the mediator files or prepares a report that either sets out the agreement reached by the clients or states only that they did not reach agreement on the matter. Here, evidence of anything said or any admission or communication made in the course of the mediation is not admissible in any proceeding except with the consent of both parties.

Family Mediation Canada’s “Code of Professional Conduct” outlines the following goals:

  • The goal of family mediation is a fair and workable agreement that meets the participants’ mutual needs and interests (not a settlement at all costs).
  • The primary responsibility for the resolution of the dispute rests with the participants. At no time should the mediator coerce participants into an agreement or make a substantive decision on their behalf.
  • The mediator’s role is that of a facilitator, i.e., to assist the participants to reach an informed and voluntary agreement that meets their mutual needs, interests and concerns, along with those of others affected by the dispute.
  • The mediator has a responsibility to promote the participants’ awareness of the interests of others affected by the dispute and by the proposed agreement and to assist them in considering the separate and individual needs of such other persons.

Although not all mediators employ the same process, the following constitute the typical steps involved in a family mediation:

  • Step #1: You will discuss all aspects of the mediation with your lawyer and your lawyer will advise whether mediation would be feasible.
  • Step #2: You and your partner will decide on a mediation and the sharing of the cost.
  • Step #3: You and your partner sign an agreement with the mediator.
  • Step #4: The mediator conducts one or more meetings with you and your partner, engaging in problem solving, discussion, and negotiation of the issues.
  • Step #5: The mediator assists the you and your partner in reaching an agreement on one or more essential terms. The mediator summarizes the details of the agreement and forwards it to the clients or lawyers for their comment and input.
  • Step #6: You will meet with your lawyer for independent legal advice.
  • Step #7: If necessary, revisions to the agreement are discussed and, if necessary, mediated and resolved.
  • Step #8: Final revisions are made, and the agreement is signed by the parties in the presence of their respective lawyers.

ARBITRATION

Arbitration is a legal procedure where the parties agree to appoint a person, who becomes the arbitrator, to review the evidence and arguments of the parties and render a decision, called an award, which is binding.

The Benefits of Arbitration:

  • First, the parties have the ability to decide which steps they will take (examinations, affidavit of documents, conferences, documents they will exchange, and timelines); whereas in court, no such freedom exists.
  • Second, unlike in traditional litigation, parties to an arbitration can not only choose their hearing date but usually have the hearing much earlier than having to wait for a trial.
  • Third, like mediation, arbitration has the advantage of allowing for private resolution, thus minimizing the risk of exposing the parties and their children to public disclosure of intimate and potentially embarrassing matters.

MEDIATION/ARBITRATION

The two-step process described above, whereby the parties retain one person to assist them in reaching a negotiated agreement, failing which they confer on that person the right to make a binding decision.

The Benefits:

  • The process is private, confidential, and offers parties the option of selecting an experienced person to help them reach an agreement in a setting and manner entirely of their own choosing
  • The arbitration component is designed to allow for a relatively quick and final decision to be made by the same person in the event an agreement is not achieved, thus saving time.

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