Alternative Dispute Resolution

Alternative dispute resolution involves resolving disputes in a way other than litigation.

Alternative dispute resolution, or ADR, allows spouses who are separating to obtain a resolution with less acrimony and expense than traditional litigation. This can be hugely beneficial to parties who, although separated, will be connected to each other because they have children for whom they both care.

ADR generally includes mediation, arbitration, or mediation-arbitration.

Mediation is a form of dispute resolution where parties retain a third-party, the mediator, to assist them in reaching an agreement. The purpose of mediation is to assist the parties to accept the realities of their respective situations, understand the underlying interests of the opposing party, and try to reach agreement about how to settle outstanding differences.

Mediation is defined by Family Mediation Canada as a co-operative, problem solving process, in which a qualified and impartial third party neutral, the mediator, assists mediation participants to resolve their disputes by mutual agreement. The resolution is to be voluntary and based upon sufficient information.

Parties can go to mediation with, or without lawyers. If parties do not have lawyers, it is always advisable to seek legal advice before entering into any agreement, even one conceived with the help of a mediator. A mediator will not impose an agreement or decide an issue.

Mediation can be either open or closed. An open mediation means that evidence of anything said, or of any admission or communication made in the course of the sessions is admissible in a proceeding, whether the clients consent or not. Closed mediation holds the content of the mediation confidential.

Arbitration is a legal procedure where the parties agree to appoint a person, who becomes the arbitrator, to review the evidence and arguments of the parties and render a decision, called an award, which is binding. The arbitrator acts similarly to a judge. The benefits of arbitration over traditional litigation are that the parties can pick the arbitrator, define the process and allow for the matter to be resolved without becoming public.

Mediation/arbitration is a two-step process that involves, first, attempting to mediate the issues then, second, if no agreement is possible, proceeding with an arbitration. The mediator is the same person as the arbitrator. This has its advantages and disadvantages. Because the mediator and arbitrator is the same person, the parties have an idea of the arbitrator’s stance going into the arbitration which increases the likelihood of settlement. However, if you did not like the mediator then you are stuck with them for arbitration.

Careful consideration should be given before agreeing to proceed with any form of ADR. Parties should seek the advice of an experienced family law lawyer prior to engaging in ADR.