Alternative Dispute Resolution (“ADR”) is a term referring to a process resolving disputes outside of court. Alternative Dispute Resolution has become more popular given the constraints on an increasingly busy court system and the opportunity for parties to reach resolutions in a more timely and cost-effective manner.
There are generally four different categories of Alternative Dispute Resolution: negotiation, mediation, arbitration and collaborative law. These will be described in greater detail below.
Why Consider Alternative Dispute Resolution?
While Ontario has one of the best judicial systems in the world, it, unfortunately, has more cases than it can address in a timely way. Most separations involving sensitive matters related to children and financial issues are best addressed as quickly as possible, particularly where parties are focussed on cooperation and preserving interfamilial relationships for the future.
Litigation in family matters is structured differently than in civil proceedings, with a focus on “conferencing” for negotiation to reduce conflict. Family law litigation also has its own special set of court forms, rules (called the “Family Law Rules”) and procedure depending on whether your matters are in the Superior Court of Justice or Ontario Court of Justice.
Family law litigation requires most litigants to attend a Mandatory Information Program (“MIP”) session as a first step. MIP sessions are basic information sessions presented by a lawyer and/or family professional (i.e., social worker, mental health professional, etc.) regarding education on family law, the court process, and alternatives to court (i.e., Alternative Dispute Resolution, such as mediation, etc.). Generally, litigants in a family matter must attend a conference before bringing a Motion and go through several Conferences before being permitted to proceed to Trial.
In family law litigation, unless it is in an emergency, a party must attend a “Case Conference” before being able to bring a Motion to obtain a court order for temporary relief (i.e., support or a parenting schedule, etc.). Depending on what geographical area you are in, the ability to schedule a Case Conference depends not only on the availability of the parties and their lawyers but the family court. It may not be possible to schedule a court date for a conference in busy family court for a month (or longer). To schedule a “long motion” (i.e., that takes more than one hour for both parties to argue) may take several months to schedule depending on how busy the courts are.
Conferences generally require litigants to prepare brief written materials that are unsworn (i.e., not signed under “oath” or “solemn affirmation”), which are used for the judge to review the parties’ respective positions and settlement proposals and offer opinions on the matter. Judges’ ability to make orders at Conferences are often limited to issues that both parties agree to (i.e., are on “consent”) or are procedural in nature (i.e., if someone requires additional time to file court documents, etc.). In many family law cases, there are, at minimum, three Conferences before litigants can proceed to trial for a final resolution in their dispute: Case Conference, Settlement Conference and Trial Management Conference. The purposes of these Conferences are slightly different as the family litigation progresses and settlement is always a consideration (see Rule 17(4)-(6) of the Family Law Rules). Thus, it is not a simple matter to get to Trial in a family law matter and often may take a year or longer in the normal course (but that varies as well on the complexity of the issues in the dispute and the availability of court time at each court).
Before commencing a court proceeding, if possible, it is recommended that parties try to resolve family disputes through negotiation. If there are children, property or need for support issues arising from the breakdown of your relationship it is recommended that you consult with a family law lawyer who can advise you with respect to your rights and obligations under the law in Ontario. Negotiations are often facilitated with counsel that can explain to each party what legal issues arise from their separation.
To meaningfully negotiate with another person, you must be informed about your legal rights and obligations and have the necessary information to engage with the other party to reach a fair and mutually satisfactory resolution. Often, family counsel can help guide negotiations and ensure that the relevant matters are discussed in a focussed, civil, and professional manner. If you and your former partner resolve the issues arising from the breakdown of your relationship through negotiation; it is recommended that those terms be confirmed in writing, i.e., a separation agreement. Both parties should obtain independent legal advice from a family law lawyer to understand the nature and consequences of entering into the separation agreement before signing it.
What Is Mediation?…
Mediation is an Alternative Dispute Resolution process where a mediator (a neutral third party), assists parties in reaching a resolution of their disputes. The mediator does not: 1) represent either party during mediation as they are a neutral third party to the dispute, 2) provide legal advice to the parties or 3) cannot force a binding settlement on the parties. Mediation is a voluntary process that both parties must agree to engage in.
Mediation may not be appropriate in situations where there are significant power imbalances between parties or domestic violence. In some situations, even where domestic violence or power balances exist, parties may be able to engage in mediation productively with the assistance of counsel and/or other measures (i.e., parties arriving and leaving the mediation at different times to avoid conflict, parties being in separate rooms during the mediation with the mediator “shuttling” back and forth, etc.).
Do I need a Lawyer?
Parties do not always need to have lawyers present at mediation if the issues are not complex, which may help reduces their costs as they only have the mediator’s fees to share (for example, working out a holiday schedule for the children). However, sometimes parties have lawyers present during mediation to assist them with legal advice and negotiation, which may be important where there are power imbalances between the parties. Generally, when a settlement is reached in mediation the parties are recommended to retain lawyers to finalize a separation agreement, in any event, to ensure that the “deal” is legally binding.
Benefits of Mediation?
Many people choose mediation because it can often be more efficient in terms of time and money, although there is no guarantee that a settlement will be reached in mediation. Parties can choose the mediator that they wish to assist them with the dispute. Depending on the nature of the dispute (i.e., parenting or financial issues) the parties can choose a mediator with the proper background and expertise to best address their issues. Often a mediation can be scheduled sooner than a court date as motivated parties and a mediator may have greater availability than the court.
Mediation can last as long, or as little, time as the parties agree. For example, parties may have multiple mediations if there are many issues that need to be addressed or that they are making progress but need time to reflect, gather additional information or narrow down issues. Alternatively, if parties voluntarily engage in mediation and it becomes apparent to one party that they are not going to be able to reach a resolution because they are “too far apart” or that one party is unwilling to make any compromise (i.e., negotiate in “good faith”) then he or she can decide to end the mediation. Mediation may be more cost-effective than starting a court process because it is less “formal”, with less formal paperwork that may need to be prepared (whereas for the court there will always be materials that need to be prepared for a judge, served on the other party and filed with the court).
Mediators can also provide a “safe space” for parties to express their goals in a civil, focussed manner, for solutions best suited for their family. There is a greater possibility for “creative” solutions to address parties’ goals and needs in mediation if both parties are willing and motivated to reach a resolution (which may not be possible in the constraints of a courtroom where judges have to strictly apply the law). For example, a judge can order that parties will sell a jointly owned home but cannot order that one party can buy-out the other parties’ interest in a home). Often a dispute that is resolved by consensus in mediation reduces the emotional toll on parties and produces more satisfaction in the settlement than having a judgment imposed on the parties that do not reflect what either party was seeking.
Mediation can be “open” or “closed”. An open mediation means that if either party wishes, they can refer to what was said during mediation at court if they wish. A closed mediation means that neither party can refer to what was said during mediation outside of mediation. The mediation agreement signed by the parties generally outlines whether the mediation will be “open” or “closed”. Many people prefer “closed mediation” because it promotes parties speaking freely about their concerns and making compromises without worrying that those proposals will be used against them in the future at court.
What is Arbitration?
Arbitration is an alternative dispute resolution process that involves a third party (i.e., an “arbitrator”) making a legally binding decision on issues in dispute like a judge. Arbitration can be as formal as a Trial at court or less formal such as written submissions to an arbitrator. The arbitration process will depend on the complexity of the issues in dispute, the nature of the evidence (i.e., documents, expert reports, or witnesses) and the procedure agreed upon by the parties and arbitrator. Like mediation, parties are responsible for the cost of the arbitrator’s time.
Parties must voluntarily agree to arbitration and sign an Arbitration Agreement, in the presence of a lawyer, stating that they waive their right to go to court and agree to have the arbitrator make binding decisions on the issues in dispute. The Arbitration Agreement defines not only the issues the arbitrator is empowered to determine by an Arbitral Award but the parties’ options for an Appeal of that Arbitral Award. The Family Law Act, R.S.O. 1990, c. F.3, the Arbitration Act, 1991, S.O. 1991, c. 17 and O. Reg. 134/07: Family Arbitration governs family arbitrations.
Do I need a Lawyer?
You need the legal advice of a lawyer to sign an Arbitration Agreement and bind yourself to that process. You may not need a lawyer to represent you during arbitration if you are comfortable presenting your position and evidence to an arbitrator.
Depending on the complexity of the issues in dispute and your confidence in presenting evidence and the views of the arbitrator, a family law lawyer may be required.
What are the Benefits of Arbitration?
Like mediation, an arbitration may be scheduled sooner than a trial based on the availability of motivated parties and the arbitrator. This enables parties to resolve family disputes in a timelier manner than is likely at court, which may be important for time-sensitive matters.
Parties can choose an arbitrator with the expertise that would be best suited for their separation issues and factor in their availability before signing an Arbitration Agreement. For example, some arbitrators may have experience in complex financial issues and may be better suited to decide such issues. Depending on where the parties reside, the court in their area may not be a Unified Family Court specializing in family law issues or have many judges that have family law expertise (i.e., judges who practiced family law before being appointed to the bench). For example, a Judge at the Superior Court of Justice often decides civil (i.e., contract law, personal injury, construction law, etc.), criminal and family law cases.
Unlike the court process, arbitration is a private process. In family litigation, all court documents are part of the “public record” (unless there is a court order sealing the court file from third-party access, which is only granted in limited circumstances) and accessible by third parties. Parties arguing motions and proceeding to Trial also cannot bar the general public from sitting in the public gallery of the courtroom to observe. In contrast, only the parties, their counsel and the arbitrator has to access to the evidence and information produced during arbitration (unless there is an Appeal of an Arbitral Award in which case some of that information may be submitted to an appellate court).
Arbitration has an “adversarial” quality to it in the sense that the parties advance their legal argument and evidence and an arbitrator must make a binding decision for them on issues in dispute. This may be the best process for parties who desire privacy, a timely resolution and are unable to reach a resolution by themselves. An arbitrator, unlike a mediator, is not there to assist the parties in reaching a settlement through consensus and acts more like a judge applying the law to the evidence to make a binding decision.
Many people decide to try mediation to negotiate a settlement before deciding to go to court or arbitration. Mediation-arbitration is a blended process whereby parties can sign a Mediation-Arbitration Agreement where they agree to first mediate, and then, if necessary, arbitrate (rather than go to court for a final resolution). If both parties are comfortable, they can have the same individual act as both a mediator and an arbitrator and that would be set out in their Mediation-Arbitration Agreement. Alternatively, the mediator can be different than the arbitrator if there are concerns. In situations where the mediator and arbitrator are the same individuals, the arbitrator must throw out their notes and disregard information learned during mediation and judge the matter afresh in the arbitration based on the evidence and legal arguments put forward at that time.
What is Collaborative Law?
Collaborative Law is a process where parties and lawyers trained in the “collaborative law process” and agree to negotiate outside of the court system. Collaborative law lawyers have specialized training and agree in writing not to go to court in the event that the parties are unable to reach a resolution (thereby theoretically incentivizing lawyers and parties to reach a resolution through negotiation rather than having parties retain new lawyers and getting them “up to speed” on their particular situation if they have to proceed to court).
Like mediation and arbitration, the collaborative law process is a voluntary process that both parties must agree to engage in by signing a Participation Agreement with their respective collaborative law lawyers. During a collaborative law negotiation, the information exchanged and positions taken are confidential (except for specified financial documents).
The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at firstname.lastname@example.org to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.