In family law matters, court litigation can be expensive, intimidating and time consuming, and may escalate the conflict in a family rather than resolve it. The Divorce Act now requires families to try to solve their family law issues by using family dispute resolution processes, where appropriate. There is also an obligation of legal advisors to encourage their family law clients to try to resolve issues using family dispute resolution, unless it would be clearly inappropriate to do so. The following are types of family dispute resolution processes which families in conflict may wish to consider prior to bringing any application before the Court:
Negotiation: It is not uncommon for relatively amicable separating spouses to negotiate the basic terms of their separation with or without the assistance of a legal adviser. If parties come to an agreement without the assistance of a lawyer, it is advisable that both parties retain their own lawyers to review the terms that they have negotiated, and formalize such an arrangement if appropriate. Negotiation can be an effective way to encourage both parties to compromise on their issues, but may not be a realistic or beneficial dispute resolution option for a family who is dealing with high conflict or family violence. Negotiation, where possible, is generally the quickest and most cost-effective way to resolve family law disputes.
Mediation: A mediator is a neutral third party who is trained to help partners work towards a resolution to their legal disputes. A mediator will generally help the parties identify and narrow issues that need to be addressed and help guide them to resolution where possible. A mediator generally does not have the ability to decide on behalf of the parties to settle the dispute and will not take sides in the dispute. Mediation can be helpful for parties with relatively low conflict and is generally most effective when the parties have a desire to find common interests and maintain an amicable relationship. Where there are ongoing safety concerns or a clear power imbalance between parties to a dispute, mediation may not be a suitable option for dispute resolution. A potential drawback to mediation is that if the parties are unable to agree on a resolution throughout the process, the issue remains and there is no decision maker to settle the dispute.
Arbitration: An arbitrator is a neutral decision maker hired by parties to a dispute and acts much like a private judge. An arbitrator has the authority to decide the issue brought before them according to the terms of any arbitration agreement entered by the arbitrator and the parties. The arbitration process tends to be less formal than appearing before the Court, but has many similar features including a binding decision maker, and an ability to appeal the decision maker’s ultimate decision. Arbitration can be a good option for higher-conflict parties who require a third party to make a decision on their behalf, and wish to avoid the delay and some of the costs of preparing for Court.
Parenting Coordination: Parenting Coordination is designed for parties who have ongoing conflict in relation to the parenting of their children after separation, and after their general parenting schedule has been established. A parenting coordinator is hired by the parties, and may use a combination of negotiation, mediation and arbitration to settle disputes. A parenting coordinator will generally not be tasked with setting the overall parenting structure for tha parties, but will resolve smaller disputes in relation to parenting. The use of a parenting coordinator can be very effective for parties who have been separated for some time, but are still experiencing day to day parenting conflict for which they require an independent decision maker.
Given the potential benefits of family dispute resolution processes, these processes should almost always be considered prior to bringing court applications. If you need help selecting which dispute resolution option is best for your family, or need help navigating one of these resolution processes, the lawyers at Family Central Law Office LLP have years of experience in these processes and are available to guide you. Please contact us today for a free consultation with our family lawyers by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
