Alternative dispute resolution (“ADR”) is becoming increasingly popular in the legal world. Across various practice areas, including family law, lawyers and clients are seeking out solutions to legal disputes that are outside of the standard litigation/trial format, or which minimize court time.
What is ADR?
ADR is an umbrella term for resolution methods that differ from the traditional adjudication method. They occur outside of a courtroom, are generally less adversarial, and can significantly cut down on the length and cost of a legal dispute.
Taking a dispute through the traditional court system can rapidly get very expensive. Matters tend to take a long time to resolve, which can drive up lawyer fees, and parties must contend with additional fees such as those that attach to court filings. In Ontario, family law matters are heard before the Superior Court of Justice, which also hears disputes in other areas of law. This court, like others, has a significant backlog of cases, and it can be difficult to get court time and keep a matter moving expeditiously. In addition, matters that are moving through the traditional civil litigation system are subject to a number of rules and procedural requirements around timing, notice to other parties, the format of documents that must be filed, and similar, which can also slow down the process.
Types of ADR
Mediation involves three parties: the two spouses (represented by their respective lawyers), and a mediator – a neutral, objective third party who has no other involvement in the case.
A mediator helps guide the conversation, but he or she does not make a final decision for the couple. The purpose of mediation is to help the couple come to an agreement or settlement that they both agree on. A mediator does not have to be a lawyer, although they often are.
The parties are each required to have their own lawyers, since they may require independent legal advice during the mediation process, and it will help to ensure their rights are protected. Mediation can take a few days, or it can be done in just one sitting. The cost of mediation is also significantly lower than going to court. The mediator does have a fee, but there is no documentation that needs to be filed. Finally, once an agreement is reached, it will be recorded in writing by the mediator, and each party and their lawyer will review the agreement. Once it is agreed upon, a separation agreement will be drafted and will include the terms that were agreed to in mediation.
Arbitration is more similar to traditional litigation than mediation is because the arbitrator (the independent third party that, in a manner of speaking, presides over the arbitration) makes a decision in the matter. An arbitrator is normally very well versed in the area of law that he or she arbitrates in.
Before arbitration, the parties must sign an arbitration agreement. The arbitrator will then listen to the parties’ respective positions and will come to a binding decision. While this does sound like court, it is not. An arbitrator is not a judge, it is normally a lawyer, who has been trained in arbitration and normally has a wealth of specific experience and knowledge in the area. Arbitration also differs from litigation in that it is much more efficient both in time and money.
Collaborative Family Law
Collaborative family law is a new ADR method. It requires the parties to work with and negotiate not only with their lawyers but also with other professionals who are experts in other areas that pertain to family law. These include financial advisors, counselors, psychologists, social workers, and similar.
The parties must agree to a “participation agreement” when the process begins. By doing so, the parties agree to act in good faith throughout the negotiations. The Collaborative lawyers must also sign an agreement that ensures the parties will not go to court. This means that they have committed to reaching an agreement. However, in the event an agreement is not reached, the process starts all over again. If the parties decide to go to court, they cannot use the lawyers they have: they must get new lawyers. This creates an incentive for the parties to reach an agreement, not just because of the hassle, but also because of the costs.
Is ADR for Everyone?
The short answer is no. ADR requires some cooperation from the parties, or at least the willingness to cooperate. ADR allows for parties to come together, sit down, and work out the issues. Sometimes, there is only one issue to be discussed, such as division of property. Sometimes, there are multiple issues, like child support and spousal support. Every situation will be different, and not every situation requires ADR.
However, there are some cases that need to be dealt with by the courts. For example: in a highly contested divorce, where there is no possibility that the parties could even come to the table for discussions, the parties are better off going to court and having a judge make a decision on the issues before them.
At Borden Family Law, we can help you determine what type of conflict resolution is best for you. In our 17 years of experience, we take the approach that best suits our client’s needs. We will sit down and listen to what you are looking to get out of this difficult situation and take you through whatever resolution method will work best. We have experience representing clients in both traditional litigation as well as collaborative family law and other methods of alternative dispute resolution. Call us at 905-597-6090 or contact us online to learn more about your options. Ask about our bundled packages and flat fees.