Alternative Dispute Resolution and Collaborative Family Law

Alternative Dispute Resolution and Collaborative Family Law

As experienced family lawyers, we understand that court proceedings for separation and/or divorce can be expensive and time-consuming. Divorce often leads to increased stress and tension between the parties involved.

To negate this, Alternative Dispute Resolution (ADR) and collaborative family law have become increasingly popular means as a way of resolving disputes without attending court. Both spouses can retain more control in these processes, potentially allowing them to get what they want without the adversarial nature of court presiding over them.

So what is ADR and Collaborative Family Law and how do they work?

Collaborative law is a way to resolve family law issues without going to court. ADR aims to fulfill both parties’ needs and is generally more cost-effective than litigation.

We have created the following quick reference table to guide you on what these processes are and which would be most suitable for you. 
Forms of ADR and Collaborative Family Law Key characteristics Legally enforceable?
Negotiation Both parties outline their positions to their legal counsel and to the other spouse, and work with them to agree on a settlement that works for both of them at the end of the process. No, but can be if agreed terms are recorded in a Separation Agreement
Mediation The resolution of a mediation is not binding on the parties. The mediator will draft a document outlining the terms of an agreement. There is no legal enforceability behind the terms of the mediation. No, but can be if agreed terms are recorded in a Separation Agreement
Conciliation A mediator is a neutral third party who hears the positions of both parties and their lawyers but they take a more active role than a mediator. The conciliator will look to develop and create the actual terms that parties will agree to, and bring proposals and settlements between each party. No, but can be if agreed terms are recorded in a Separation Agreement
Arbitration The parties and their lawyers present their arguments to an arbitrator, who will make a final and binding decision. Arbitration is usually more cost-effective than court because it does not have the same drafting requirements and appearance requirements. Yes, the arbitrator’s decision is legally enforceable.
Collaborative Family Law Collaborative family law requires parties to have open lines of communication and be willing to share information. Parties will usually have a team, usually made up of a lawyer, accountant and social worker. If parties are not able to come to a resolution, their lawyers agree that they will not continue to act if the parties are proceeding to court. No, but can be if agreed terms are recorded in a Separation Agreement

Things to consider before choosing ADR or Collaborative Family Law

(1.) Are both parties willing to co-operate and negotiate in good faith?

If one party is not interested in an agreement, the negotiation will not succeed. Both parties would be wasting their time and money. Neither ADR (aside from arbitration) or collaborative family law can force a decision upon a party.

(2.) Even if agreement cannot be reached for all issues, are there some things the parties can concede?

ADR might be useful for certain issues, but some may remain too contentious to be resolved without court proceedings. ADR and collaborative family law help to streamline court proceedings. Parties can negotiate/mediate/collaborate to resolve certain issues, and leave the other more contentious issues to a judge or arbitrator.

(3.) Is there an existing power imbalance between the parties?

ADR or collaborative family law may not be able to achieve a fair and equitable solution to both parties if there is a deep-seated power imbalance. In a party, the one with more power may be able to get the other to agree to more concessions. If such a power imbalance exists, then ADR may not be the best avenue for you to choose.

Your Family Lawyer’s role in ADR

ADR and collaborative family are informal and compromising, which may lead you to believe that a lawyer is not necessary. Legal counsel is necessary during legal processes.

The two most important dimensions that a lawyer brings to these proceedings is an expertise in the law and their advocacy for their client. Lawyers are able to clearly identify the legal issues that the parties are facing upon their separation or divorce. 

In advocating for you, we can eliminate power imbalances and advise you of any concerns we have regarding the other side’s proposal and the consequences of accepting their offer. ADR allows parties to be comfortable with the lawyer’s goals and proceedings. Arbitrators and mediators are unbiased third parties who cannot offer advice. Having legal counsel during ADR or collaborative family law ensures that the parties know what they are agreeing to.

If you are looking for more information or have additional questions, please do not hesitate to contact us. We will be happy to discuss your matter over a free consultation. You can reach our office at 905-366-0202 our contact us through our website here.

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