Resolve Disputes - Outside the Courtroom
Taking your family dispute to court is expensive, time consuming, slow, and public. There are several alternatives to the courtroom, processes generally described as “alternative dispute resolution” or “ADR”. These include:
- Mediation
- Arbitration
- Mediation/Arbitration (a hybrid approach)
All of these processes can be used to resolve disputes in a binding way, and can be enforced through the courts later on if necessary. Each of these processes has strengths and weaknesses. This guide provides an overview of each of these different ADR processes, as well as detailed articles on how to prepare for mediation or arbitration and other related topics.
1. Mediation
Unlike family court, mediation is private, is intended to resolve disputes in a single day, and can cost far less than court proceedings. A mediation is usually a full-day or half-day meeting between you, your ex, and a mediator. You work through the issues in dispute on a practical basis and attempt to reach an agreement that will be binding on both parties. While this sometimes involves compromise and trade-offs, family law mediators are also trained in identifying solutions that the parties may not have considered and finding areas of common concern. Mediation can lead to resolution faster and at far less cost than litigation.
You may or may not have lawyers attend, and you can mediate a dispute without being represented by counsel, which can be even more cost effective (although you will need to obtain independent legal advice on the mediation agreement).
You should choose your mediator based on the nature of your dispute. Three of our lawyers are trained mediators, and we have mediated a wide range of disputes on family law issues. Depending on the situation you may wish to work with a specialist non-lawyer mediator such as a psychologists or a counsellor. You can discuss the selection of an appropriate mediator for your issue with your family lawyer. A more detailed overview of the mediation process is set out in our article, “The 5 W’s of Mediation”.
The agreement you reach in a mediation can be put in the form of a consent order and filed with the court to ensure it is readily enforceable. With cost, schedule and privacy advantages, there are few reasons not to attempt mediation, particularly where there is a genuine interest on both sides of the dispute in reaching a reasonable and practical outcome.
2. Arbitration
An arbitration is similar to a court trial. In an arbitration, the parties appoint an arbitrator who hears evidence and argument from both sides and makes a binding decision. The arbitrator’s decision is enforceable through the courts. All Canadian provinces and territories have passed laws recognizing the enforceability of private arbitrations, and it is commonly used where the parties wish to avoid the publicity of court proceedings and are looking to have their dispute resolved in a more timely manner. Although the parties must pay the arbitrator, arbitration can be less expensive than court due to the arbitrator’s ability to streamline the process and focus on the real issues.
3. Mediation / Arbitration
A mediation / arbitration (or “Med/Arb”) is a hybrid process where the parties meet with a mediator in an effort to reach an agreement on all of the issues in dispute. The mediator then becomes an arbitrator and makes a binding decision for any remaining unresolved issues. A Med/Arb ensures that at the end of the day, all of the issues in dispute are resolved, either by agreement or by the mediator/arbitrator’s decision. This approach combines the strengths of both mediation and arbitration - it is cost-effective and encourages the parties to find common ground, but where they cannot agree there will still be a conclusive resolution that allows everyone to move on with their lives.
4. Further Reading on Mediation & ADR
The articles below offer a more detailed look at the mechanics of alternative dispute resolution processes including mediation and arbitration, as well as practical advice for preparation and successful participation in a family law ADR process. We publish articles from ADR experts as well as other lawyers and mediators - if that’s you, let us know if you’d like to write something about family law ADR.
