ALTERNATIVE DISPUTE RESOLUTION

What Is Alternative Dispute Resolution?

Do you want to resolve a family law dispute without having to go to court? If the answer is yes, alternative dispute resolution may be the right option for you.

Alternative dispute resolution is a type of law practice whereby the parties and their family law lawyers communicate with each other in an effort to resolve the legal dispute, without engaging in litigation. In other words, the parties and their lawyers try to resolve the family law conflict, often with the involvement of an impartial third party, without having to go to court.

What are the Benefits of Alternative Dispute Resolution?

Alternative dispute resolution is beneficial to clients because it is generally less combative, less expensive, more flexible, and more individualized than litigation.

Are There Different Kinds of Alternative Dispute Resolution in Family Law?

There are several different kinds of alternative dispute resolution in family law, including but not limited to:

• Mediation: The parties hire a professional mediator as a third party to assist them in resolving their family law dispute.
• Arbitration and mediation/arbitration: The parties hire a professional arbitrator or mediator/arbitrator as a third party to assist them in resolving their family law dispute.
• Collaborative family law: The lawyers for the parties communicate with each other and engage in conflict resolution strategies, other than litigation, with the goal of resolving the family law dispute.
• Parenting coordination: The parties hire a trained professional in family matters to mediate and/or adjudicate the family law dispute, depending on the type of family law dispute.

Mediation

Mediation involves a neutral third party who attentively listens to both parties of the dispute. Mediators are experts at handling conflict and are there to help both parties reach an agreement so that they can avoid going to court. They deal with Family law matters including child support payments, dividing up property, and decision-making responsibilities regarding the children. Mediators do not give legal advice, take sides, or make any decisions. Their sole purpose is to moderate the discussion and help both parties reach a desired agreement. There are also two types of mediation; open and closed.

Open mediation: If mediation proves unsuccessful and you end up going to court, the mediator and/or either party can bring up what happened during mediation in court.

Closed mediation: Anything that happened during the mediation process cannot be shared in court. The only exception to this rule is if there are any extenuating circumstances. For example, if there are concerns over the safety of a child.

Because the process of mediation involves both parties conversing with one another, it may not be the best ADR method for every family law matter. For example, if there is a history of physical or emotional abuse in the relationship and both parties feel uncomfortable communicating directly in the same room, mediation may not be the most effective ADR method to pursue. However, some cases can include “Shuttle Mediation.” This kind of mediation allows the mediator to speak first with one party directly before the next party enters and the initial party leaves. This way, both parties do not have to be present in the same room during the discussions.

Arbitration

Arbitration is very similar to mediation. Both ADR methods are voluntary and involve a neutral third party. However, arbitrators differ from mediators because they have the legal authority to make decisions, whereas mediators can only listen and monitor both parties. The decision that the arbitrator makes is called an “arbitral award”. It’s also important to note that the decisions arbitrators make are legally binding. This means that the courts can enforce decisions made by arbitrators. However, it’s mandatory that every party using mediation and/or arbitration have legal representation. Otherwise, the decisions made by the mediator/arbitrator will not be binding. Although arbitrators have the authority to make legally binding decisions, they do not have the authority to annul a marriage or grant a divorce. Their decision-making typically involves child custody and dividing property. In some circumstances, parties can appeal the arbitral award if they don’t agree with the decision.

Collaborative Family Law

Collaborative Family Law (CFL) is another method of ADR that has become increasingly popular over the last couple of years for parties looking to resolve their legal disputes. While CFL may look similar to mediation and arbitration, it does have some differences. CFL is a type of negotiation that does not include a neutral third party. Instead, both parties meet with their lawyers face-to-face, to negotiate a solution to their legal problems. Just like the other methods, this is also a voluntary type of ADR. To achieve the best results from CFL, it is recommended that the lawyers representing both parties undergo proper CFL training so they can engage in meaningful, collaborative conversations throughout the process to achieve a successful and peaceful outcome.

Parenting Coordination

Parenting coordination is another type of ADR that has a lot of similarities to the methods mentioned above but with some unique differences. Like mediation and arbitration, parenting coordination is a voluntary method that cannot be forced onto any party. Unlike arbitration however, parenting coordinators cannot make decisions for any party. Parties come to parenting coordinators after there has been a court order or an arbitrary award. This means that parenting coordinators help parties resolve minor issues that relate to a decision that has already been made.

For example, a parenting coordinator might help both parties figure out when the appropriate time is to drop off their kids, pick their kids up from extracurricular activities, or schedule vacation days so that the children know who they are staying with on certain days of the week. Another way of looking at the role of a parenting coordinator is asking yourself, “based on the decision that was made by the judge/arbitrator, how do we plan our next steps?” This is where a parenting coordinator would come in to help arrange those plans.

Conclusion

If you feel you may benefit from engaging in alternative dispute resolution to resolve your family matter, please do not hesitate to reach out to our family law lawyers at Chand & Co. by calling 416-583-2377 or by emailing admin@chandlitigation.com.

*DISCLAIMER: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this website are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.*