What is Alternative Dispute Resolution?

What if there was a different way of resolving post-marital conflict? One that instead of tearing people apart helped them to come together, see eye to eye and work on finding solutions that benefited everyone? Marital breakdown is most often predicated by some level of conflict. Disagreements and destructive communication wear away at a couple’s relationship until their union has crumbled – and it’s precisely at this point that these two individuals are expected to sit down and establish the terms of their divorce, including parenting plans, property division and support.

Couples often assume that drawing a case through the court system is the only way to come to a divorce settlement. This is, after all, the illustration that the media has given us for years now. However in recent decades forms of alternative dispute resolution have gained popularity as more cost effective, efficient and solution oriented avenues for negotiating divorce settlements. Professionals are now assisting their clients in building cohesive co-parenting relationships, rather than engaging in an all-out courtroom battle.

Alternative Dispute Resolution, or ADR, refers to alternative methods used to keep legal conflicts out of court. There are a number of primary forms of ADR that are available to those navigating the divorce process, ranging from those where decisions rest in the hands of the parties themselves, to those where decision making authority is given over entirely to a third party.

1.   Negotiation

Negotiation is the most informal of all the processes and often where separating couples will begin their discussions. These “kitchen table negotiations” as they’re sometimes referred to are essentially brainstorming discussions. They are an opportunity for former spouses to get preliminary ideas down on paper. This works particularly well where the two are able to communicate reasonably well and listen to what the toher has to say.

Benefits: Negotiation allows the parties to be fully in control of their decisions, as well as the process of when, where, and what they will discuss. The process involves no financial cost.

Disadvantages: To be able to effectively negotiate terms of a divorce settlement, parties must be able to communicate effectively and respectfully. This can be difficult due to high strung emotions and the personal nature of topics being discussed. Without professional facilitation, negotiation can become a very lengthy process as couples struggle with finding common ground and understanding.

2.   Mediation

Mediation is a voluntary form of ADR in which a neutral third party, the mediator, facilitates discussion between the two individuals. The mediator does not make any decisions on behalf of the clients but rather assists them in reaching decisions amongst themselves. Family mediators receive training in interpersonal communication techniques, family law, domestic violence and family systems, allowing them to assist clients with the particulars from custody and parenting plans to support and property division. A memorandum of understanding is written up at the end of the mediation by the mediator, allowing decisions to later be incorporated into a separation agreement by one of the clients’ lawyers. Parties are strongly urged to seek independent legal advice throughout the process.

There are two forms of mediation; open mediation, and closed mediation. Closed mediation is a process in which all discussion as well as supporting documentation remains confidential and cannot be used as evidence in any future court proceedings. Open mediation is the process whereby discussion may be used as evidence in court and any party may offer testimony on what was said within the mediation. Of the two processes, closed mediation is far more commonly utilized by mediators.

Benefits: Mediation allows divorcing individuals to work productively through difficult conversations with the facilitation of the mediator while maintaining full control over their own decisions. The process allows for creative solutions that would not be offered in court, ensuring that individuals can tailor their agreements in such a way as best suits their family’s unique circumstances. Mediation is a cost effective process where the two parties share the cost of one mediator. The process provides efficiency, allowing issues to be resolved within a number of sessions.

Detriments: Successful mediation is contingent upon parties’ abilities to communicate. Mediation may not be feasible in situations where parties are unable to maintain respectful discussion or where parties face unease with the prospect of being in close proximity to one another. In situations where parties are unable to make decisions together, arbitration or adjudication would better serve their needs.

3.   Collaborative Law

Collaborative law is a process whereby parties agree to devise their settlement entirely out of court. With lawyers present, parties engage in round table discussion over the terms of their agreement. Mental health, financial, and other professionals are often brought aboard the team in order to provide their expert opinions and assessments. Lawyers are retained under the premise that they will not represent their clients in court, but rather represent them only for the purposes of the collaborative process.

Benefits: Collaborative law offers a constructive focus similarly to mediation, in that parties are encouraged to work cooperatively in fashioning a divorce settlement. The process has potential for moving along at a decent pace due to the presence of lawyers. Parties are able to keep costs down by paying only for their lawyers respectively. Control over decisions lies entirely in the hands of the parties.

Detriments: Parties must each pay their lawyer for continual presence throughout negotiations. If clients decide that the collaborative process is not for them, they must retain new legal counsel and begin an entirely new and potentially costly process.

4.   Arbitration

Arbitration may be utilized in cases where parties require a neutral third party to step in and make decisions for them. The arbitrator acts in a similar capacity to a judge, hearing submissions, evidence, and defences from parties, and finally issues an arbitration award, which is a ruling enforceable by the courts. Parties may choose to have an arbitrator rule over their entire settlement, or over specific issues of the case.

Arbitration might be chosen for reasons such as privacy, finances, and efficiency. In this process, records are not made public as they would in a courtroom trial, allowing for the protection of a family’s dignity. Appointments are scheduled at everyone’s convenience rather than dragging out for years through the court system. Parties are also able to maintain control over who their acting arbitrator will be, which is not so in the assigning of a judge to a trial case.

Benefits: Parties are able to attain judgment on issues without dragging their case through the court system, saving time, money, and stress. Parties maintain control over who arbitrates their case, and over the privacy of their case.

Detriments: Parties relinquish complete control over the decisions being made.

Is ADR a viable option for every divorcing couple?

The most crucial factors in any method of alternative dispute resolution is the voluntary and respectful involvement of each party. The effort enlisted in collaborating on building a strong divorce agreement will be the cornerstone of any process. Particularly with regard to negotiation, mediation, and collaborative law, parties must work together toward a common outcome. There are cases in which litigation is necessary such as where couples are unable to make decisions jointly, or where there is a history of domestic violence or abuse.

For more information on alternative dispute resolution and to determine whether one of the above options may be right for you, take a look at the websites of the Ontario Association for Family Mediation or Family Dispute Resolution Institute of Ontario. These websites provide further information on ADR as well as a directory of practitioners.