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Resolving family law cases through the court system has always been a long and arduous process. However, the advent of the COVID-19 pandemic in early 2020 has resulted in even further delays in the court process, including the availability of court dates and more stringent tests for bringing urgent motions.
As the courts experienced unusual delays brought on by the pandemic, I have used ADR in the management of my client’s family law matters more than ever before. The main forms of ADR are described in more detail below:
This is a very informal process. There is no way of enforcing deadlines or timelines, and there is no guarantee that negotiations will be successful. The aim here is to sign off on a written agreement if the parties are able to reach a consensus. Parties can walk away from negotiations at any time.
This process allows for negotiation and settlement discussions through a qualified mediator who is usually a social worker, psychologist or sometimes a lawyer. The mediator must be an impartial person who is able to craft creative proposals to give the parties a platform for settlement. However, the mediator cannot offer legal advice. You can walk away from the mediation process at any time without any consequences, save for the payment of the mediator’s fee. If you come to an agreement in mediation, it is generally not legally enforceable unless a lawyer reviews it with you, gives you independent legal advice, and turns it into a valid agreement.
The Arbitrator is given the power to determine family law cases pursuant to the Arbitration Act. The parties participate in Arbitration voluntarily by signing the Arbitrator’s retainer agreement after receiving legal advice. The Arbitrator may try to assist the parties in arriving at a consensus at the start of the process, but if there is no consensus, the issues in dispute will be arbitrated. Once the Arbitration process starts, you cannot simply walk away from it. If you do, the Arbitrator will make decisions without your participation. You must accept the Arbitrator’s decision, subject to the right of appeal if their decision is not in accordance with the facts and/or law. The Arbitrator cannot grant you a divorce or an annulment, but they can make decisions (as a judge would) on any other corollary issue in a family law case (i.e. parenting time, decision-making, property division, and support).
This is a more sophisticated form of negotiation that allows the parties, their lawyers, and third-party specialists (i.e. family professionals and/or financial professionals) to work together as a team to reach a mutually acceptable resolution of the issues stemming from the breakdown of a marriage or common law relationship. Resolutions are incorporated into a Separation Agreement. If no resolution is reached, the parties have to retain new lawyers; this means that your lawyers have a vested interest in ensuring that the collaborative process is successful. For most cases, Collaborative Family Law avoids the adversarial, costly, and hostile nature of litigating in court.
Litigation is the traditional method of resolving family law disputes. It requires both parties to be present issues in dispute to a judge for resolution. Litigation ought to be resorted to in cases involving family violence or where there is an emergency or urgency. Once each side has presented their case, the judge renders a decision setting out the terms by which the parties must abide pending future changes.
ADR is preferable to litigation because:
1. Your case will most likely be resolved more quickly;
2. You have more control over what happens in your case;
3. You usually have a better understanding of your case;
4. You usually have better communication with your spouse post-separation;
5. It can be more affordable (in the long term) than a court case; and
6. It may be less emotionally traumatic and stressful than going to court.
Alternative Dispute Resolution -
A Better Approach to Divorce
“The wheels of justice turn slowly but grind exceedingly fine”
The Problem - Delay
Resolving family law cases through the court system has always been a long and arduous process. However, the advent of the COVID-19 pandemic in early 2020 has resulted in even further delays in the court process, including the availability of court dates and more obstacles to bringing urgent motions.
As the courts experienced unusual delays brought on by the pandemic, I have used ADR in the management of my client’s family law matters more than ever before. The main forms of ADR are described in more detail below:
This is a very informal process. There is no way of enforcing deadlines or timelines, and there is no guarantee that negotiations will be successful. The aim here is to sign off on a written agreement if the parties are able to reach a consensus. Parties can walk away from negotiations at any time.
This process allows for negotiation and settlement discussions through a qualified mediator who is usually a social worker, psychologist, or sometimes a lawyer. The mediator must be an impartial person who is able to craft creative proposals to give the parties a platform for settlement. However, the mediator cannot offer legal advice. You can walk away from the mediation process at any time without any consequences, save for the payment of the mediator’s fee. If you come to an agreement in mediation, it is generally not legally enforceable unless a lawyer reviews it with you, gives you independent legal advice, and turns it into a valid agreement.
The Arbitrator is given the power to determine family law cases pursuant to the Arbitration Act. The parties participate in Arbitration voluntarily by signing the Arbitrator’s retainer agreement after receiving legal advice. The Arbitrator may try to assist the parties in arriving at a consensus at the start of the process, but if there is no consensus, the issues in dispute will be arbitrated. Once the Arbitration process starts, you cannot simply walk away from it. If you do, the Arbitrator will make decisions without your participation. You must accept the Arbitrator’s decision, subject to the right of appeal if their decision is not in accordance with the facts and/or law. The Arbitrator cannot grant you a divorce or an annulment, but they can make decisions (as a judge would) on any other corollary issue in a family law case (i.e. parenting time, decision-making, property division, and support).
This is a more sophisticated form of negotiation that allows the parties, their lawyers, and third-party specialists (i.e. family professionals and/or financial professionals) to work together as a team to reach a mutually acceptable resolution of the issues stemming from the breakdown of a marriage or common law relationship. Resolutions are incorporated into a Separation Agreement. If no resolution is reached, the parties have to retain new lawyers; this means that your lawyers have a vested interest in ensuring that the collaborative process is successful. For most cases, Collaborative Family Law avoids the adversarial, costly, and hostile nature of litigating in court.
Litigation is the traditional method of resolving family law disputes. It requires both parties to be present issues in dispute to a judge for resolution. Litigation ought to be resorted to in cases involving family violence or where there is an emergency or urgency. Once each side has presented their case, the judge renders a decision setting out the terms by which the parties must abide pending future changes.
ADR is preferable to litigation because:
1. Your case will most likely be resolved more quickly;
2. You have more control over what happens in your case;
3. You usually have a better understanding of your case;
4. You usually have better communication with your spouse post-separation;
5. It can be more affordable (in the long term) than a court case; and
6. It may be less emotionally traumatic and stressful than going to court.
