Most separating spouses do not resolve their parenting, support, and property issues in court. In fact, Canada’s Divorce Act requires separating spouses and their lawyers to try to resolve these issues through an out-of-court process unless it is inappropriate to do so. This can be a cheaper, faster, and less acrimonious way to settle family law disputes than traditional court litigation. These out-of-court options are referred to by the general term ‘family dispute resolution process’ (FDR). The most common forms of (FDR) processes, are negotiation, collaborative family law, mediation, and arbitration.
- This can be formal negotiation between lawyers or more informal negotiation between the parties themselves, with or without lawyers. Negotiation can occur when only one party has a lawyer, and the other party does not. Most separating couples try negotiation first before proceeding to other forms of FDR.
- Collaborative family law is a form of negotiation, that attempts to focus on the needs of families. In this type of FDR process, spouses work together, with their lawyers and other neutral experts, such as psychologists and accountants, to reach a mutually agreeable resolution of their division of property, support, and parenting issues. In collaborative family law, negotiations are interest-based and held in an open and transparent manner. Creative solutions are crafted to address the specific interests and concerns of each spouse. When the issues are resolved, a separation agreement is drafted containing all the items discussed in negotiations.
- Mediation is a process that uses a neutral third party known as a ‘mediator’ who listens to the concerns of both spouses and can suggest ways to resolve the issues. However, a mediator does not have the authority to impose their own decisions and cannot grant spouses a divorce. If a voluntary settlement is reached, it will only be binding if turned into a legal separation agreement. Mediation tends to be successful when spouses have a relatively positive relationship, are willing to engage in the process, and are able to communicate effectively with each other. Mediation gives spouses the ability to craft a settlement on their terms, and not have one imposed on them.
- Arbitration uses a neutral third party known as an ‘arbitrator’. Like mediators, arbitrators can assist parties to resolve issues. Arbitration differs from mediation in that an arbitrator has the authority to make a binding decision, called a family arbitration award. In this sense, it is similar to a court case. However, arbitration has several advantages over court. It is private and confidential, unlike a court case. The process is less formal and less expensive than court and tends to be much faster. It also gives spouses more control, since they can select the arbitrator they want and schedule arbitration sessions according to their availability, unlike court where judges and court dates are assigned based on the court’s own schedule.
Despite their advantages, FDR processes are not appropriate for families where there is a history of family violence, power imbalances, high conflict, or mental health or addiction concerns. If these issues exist, parties are not required to try FDR and can proceed directly to court.
Please contact Gilbertson Davis LLP you are considering a Family Dispute Resolution Process to resolve your family law matter. We will take time to explain the advantages and disadvantages of each form of alternative dispute resolution to you to determine which process best fits your specific needs. Our family law counsel is a certified collaborative lawyer and a member of the Collaborative Divorce Toronto practice group. We advise and represent clients throughout the mediation, arbitration and collaborative family law process.
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