Amity Xu*
Legal processes can be especially tiring and costly, even without the troubles associated with proceeding to court. As a result, some people may choose to resolve their family law issues with their partner outside of court through other options, sometimes called alternative dispute resolution (ADR). Though these methods may be more flexible and less complex, they are not always successful, and it is advised that you speak to a lawyer before making any decisions. ADR may not be suitable for everyone, especially if you or your ex-partner do not have equal ability and/or power when negotiating.
Negotiation
As with most family law issues, ADR typically begins with informal negotiations. This may be done through the parties themselves, or through their lawyers. Discussions will be had regarding separation, divorce, or other issues, in an attempt to compromise or come to an agreement.
Mediation
Through this method, an impartial third party is used as a mediator. They facilitate the parties’ negotiation by helping them communicate, and occasionally provide suggestions to potentially resolve the issue. The mediator does not make any decisions, and it is ultimately up to the parties to decide the outcome. Additionally, the mediator does not provide legal advice; it is thus still recommended that you consult with a lawyer during this process, especially before signing any agreements.
Arbitration
In arbitration, the parties involved will appoint an impartial third party to decide on the outcome of the dispute. This party, the arbitrator, is typically an experienced lawyer with specific training in arbitration, or somebody with special family law training. The arbitrator will speak with each party privately, or hold a hearing resembling a trial, and then make a decision based on Canadian or Ontario family law. This is similar to a court order, only much less formal. The arbitrator may only decide on issues that you and your former spouse have asked them to address, and they cannot grant a divorce or restraining order. Similarly to mediation, you will want to consult with a lawyer during this process to ensure you receive the best possible outcome.
Collaborative Family Law
As its name suggests, this is a very collaborative approach to resolving disputes, in which the parties involved try to reach a resolution through settlement, rather than going to court. With this approach, you, your ex-partner, your respective lawyers, and sometimes, other professionals (e.g., financial advisors, accountants, mental health professionals), voluntarily work together to solve any issues. It is unlike typical negotiations in many ways, as rather than working against one another, the lawyers focus solely on problem-solving. You and your partner will retain specially trained lawyers for this process, who are working towards settlement only. The collaborative lawyers cannot take the case to court; if resolution of the issues fails, and going to court is needed, then you must find new lawyers.
As with the other forms of ADR, this is not appropriate where there has been a history of abuse, or there are known mental health or drug abuse issues. It will likely only be successful if you and your former spouse have mutual respect. This is especially true with this approach, which focuses heavily on cooperation.
Just as there are benefits to ADR, there are many potential drawbacks as well, and consulting with a lawyer is always recommended. If you would like any assistance with your family law issues, please feel free to contact us at (416) 800-7196.
* Amity Xu is a co-op student at the Law Office of Jeff Jiehui Li.