Alternative Dispute Resolution: An Overview
Alternative Dispute Resolution (ADR) is the resolution of disputes by negotiation between parties as opposed to litigation. In family law ADR can take several forms: mediation, arbitration, mediation-arbitration, and collaborative law.
Family Law Mediation
Mediation is a dispute resolution device where the parties agree to appoint an impartial third person called a mediator to help the parties reach a voluntary and amicable settlement. Participation is voluntary and can be ended by either party at any time. A mediator does not make a decision nor do they provide legal advice to the parties. A mediator provides the parties with an informal and non-adversarial process and will confer with the parties and endeavour to obtain an agreement between them. Mediation provides parties with the unique opportunity to discuss their issues openly in an attempt to have the parties work together to resolve their issues.
Before entering into mediation, the parties will decide whether the mediation is to be open or closed. Open mediation means that the mediator is able to file a full report on the mediation, which can include anything that he or she finds relevant. Closed mediation means that at the conclusion of the mediation the mediator will file a limited report that sets out only the agreement reached by the parties or states that the parties did not reach an agreement. Further, if the parties have decided that the mediator is to file a limited report, no evidence of anything said of or any admission or communication made in the course of the mediation is admissible in any proceeding. The only exception is when all parties involved in the mediator’s proceeding have been consulted.
It is important to note that not all cases are suitable candidates for mediation, particularly in matters involving domestic abuse or domestic violence.
Family Law Arbitration
Family Law Arbitration is where the parties agree to have a third party review the evidence and arguments of the parties and make a binding decision. Arbitration acts as a private court for individuals to settle their disputes, so parties are able to tailor the steps they will take in arbitration to resolve their matter quickly and confidentially. The parties are able to confer on the arbitrator the power to decide questions of law, to determine the procedure of the hearing with regard to the parties’ convenience, and other circumstances of the case, to require a witness to testify and to make interim decisions. Family arbitrations must be conducted pursuant to a “family arbitration agreement,” which must contain independent legal advice, be signed by both parties, and be witnessed. If an agreement is not reached by the parties, the arbitrator will prepare and release his or her award with reasons for decision.
Family Law Mediation-Arbitration
Mediation-Arbitration is a process where the parties retain a third party to assist them in reaching a voluntary and negotiated agreement through mediation. However, if the parties are unable to make a negotiated agreement, the parties may then request arbitration by the same third party to make a binding decision. Both parties have the right to decide to end the mediation at any time. If an agreement is not achieved, the third party will then make a decision based on the evidence presented by the parties and come to a quick and final decision. This process is intended to minimize the time and costs of matrimonial disputes and encourage the parties to come to a reasoned, negotiated settlement.
Collaborative Family Law (CFL) is a process where parties and their lawyers commit to settling their issues. The parties agree that litigation will not be commenced by either party while negotiating and that if after attempts at negotiation an agreement cannot be reached, the parties’ lawyers will not represent either party if their matter goes to court. A CFL lawyer not only provides advice to their client but ensures that each party participates in the process, negotiates in good faith and ensures the integrity of the process to produce settlement. This is a less adversarial process where the parties communicate and exchange all information or concerns in order to agree a mutually acceptable settlement.
For more information, please contact:
Shawyer Family Law
504-2300 Dufferin Street
Toronto, ON M6A 3B2
416-398-4044 ext 25