Alternative Dispute Resolution or “ADR” is an out-of-court process that couples may use to resolve their family law issues as an alternative to going to court. The various alternatives to court allow parties far more control and input into the process of resolving their family law matter rather than handing everything to a Judge to decide. ADR generally avoids the formalities and complexities of litigation; however, ADR may not always be successful, at which point parties may need to proceed to court if they cannot settle their issues outside of court.
The most common types of ADR are Negotiation, Mediation, Collaborative Family Law, and Arbitration.
Negotiation
The first step in any family law dispute often involves informal negotiations between the parties. This may be done between the parties themselves or through the assistance of their respective lawyers. The goal is to come up with a compromise with respect to your separation and divorce and incorporate such terms of settlement into a separation agreement.
Mediation
A Mediator is an impartial third party who helps the parties try to reach a mutually acceptable resolution of the dispute. Unlike a Judge or an Arbitrator, the Mediator is not a decision maker. The role of the mediator is to rather assist the parties in reaching their own decision on a settlement by helping parties communicate and providing them with legal information so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties.
The Mediator should not take sides or make decisions for you. They also cannot give legal advice. While the Mediator will attempt to help you arrive at an agreement, in the end, you and your former partner make the decisions with respect to your family law matter.
Collaborative Family Law
Collaborative law is a specific type of negotiation. In collaborative law, you and your former partner, your respective lawyers, and other professionals such as financial advisors, mental health professionals, accountants etc., voluntarily agree to work cooperatively to come to an agreement. Before starting the collaborative process, the parties sign a collaborative agreement agreeing not to bring any court applications.
Arbitration
An Arbitrator is a neutral third party who privately hears arguments and evidence from both parties and then decides on the outcome of the dispute. The decision of the Arbitrator is referred to as an “arbitration award”. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. The Arbitrator is usually a senior lawyer who has specific training in mediation/arbitration or a non-lawyer who has acquired special family law training.
Like litigation, parties are bound by the decision of the Arbitrator. Arbitration can be beneficial for parties who are unable to resolve their matters through negotiation and mediation and therefore require an independent third party to adjudicate the matter.
There are a wide range of options available to parties who wish to find alternatives to going to court. However, ADR is not appropriate in every situation. Our lawyers will assist you in understanding what ADR option may be right for you in your particular circumstances.