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. They can also sometimes unnecessarily increase stress and tension between parties that are required to have some form of interaction post-separation (e.g. where children are 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?
ADR is any alternative means of finding a solution to a family law dispute that is outside of traditional court proceedings. Court action often requires parties to confront and contradict their opinions and memories of each other publicly. ADR aims to fulfill both parties’ needs and is generally more cost-effective than litigation. ADR and collaborative family law can be used on most family law issues, including spousal support, child support, access, custody, and the division of property.
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||The two spouses each work to come to an agreement between themselves and with their lawyers if they have retained one. Both parties outline their positions to their legal counsel and to the other spouse. The spouses and lawyers work to find an agreement that works for both parties, compromising where necessary.||No, but can be if agreed terms are recorded in a Separation Agreement|
|Mediation||The two spouses with their lawyers outline their position and their needs to a neutral third-party mediator. The mediator will have sessions with both parties present and individually. The mediator will help facilitate communication and guide parties towards a resolution. Before the mediation, parties will agree if what is discussed during the mediation can or cannot be used in a future court proceedings. The resolution of a mediation is not binding on the parties. The mediator will draft a document outlining the terms that have been agreed to, but there is no legal enforceability behind it.||No, but can be if agreed terms are recorded in a Separation Agreement|
|Conciliation||There is a neutral third party (“conciliator”) 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. The conciliator will meet with the parties and their lawyers alone, bringing proposals and settlements between each party. The parties are not expected to interact or communicate directly with one another.||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. Many of the arguments would be similar to those presented in court, but it is done less formally in front of a neutral and unbiased arbitrator. Arbitration is usually more cost-effective than court since arbitration does not have the same drafting requirements and as many appearances before it concludes. After all parties have presented their arguments, the arbitrator will make a final and binding decision on the party.||Yes, the arbitrator’s decision is legally enforceable.|
|Collaborative Family Law||Parties will usually have a team to support them, usually made up of a lawyer, an accountant, and a social worker. Both parties are to have open lines of communication and should be willing to share information. Normally, a party may be unwilling to share information and documents since this can be used in future court proceedings. Collaborative family law eliminates this concern by requiring lawyers to only be retained for the collaboration part of these proceedings. If parties are not able to come to a resolution, their lawyers agree at the outset 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 of the parties is not interested or is not engaging then there is no hope of coming to an agreement. 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 can at least be used to streamline the issues that need to be heard in court. 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. Due to the less formal nature of the meetings, the party who normally holds the greater power (financial, emotional or otherwise) may be able to influence the other party to accept 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
The more informal and compromising nature of ADR and collaborative family might leave you with the impression that a lawyer is not required. This is not recommended as legal counsel is able to play a significant and vital role during these 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. They can guide the parties to the issues that they are required to think about and help their client get a better sense of what they may be entitled to.
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. During ADR or collaborative family law, the party can be comfortable in the fact that the lawyer is working to achieve their goals and can comfortably partake in the proceedings. Arbitrators and mediators are unbiased third parties who cannot offer advice. Having legal counsel during ADR or collaborative family law ensures that there are no surprises when it comes to executing the parties’ agreed result.
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.