Navigating a separation from a spouse or a partner is often stressful, painful and confusing. There is often no end to the worries, including financial stress, concerns for children, and the desire to end the conflict without a war. An important conclusion reached by many family law professionals, including lawyers, psychologists and Judges, is that proceeding to court to resolve family law disputes is a poor option. Litigation often divides families beyond repair, making future co-parenting impossible. Given the time constraints and ailing resources of the Courts, it is also difficult to obtain results that are tailored to a particular family. Needless to say, it is also expensive, time consuming, and stressful.
Fortunately, there have been significant advancements in Alternative Dispute Resolution processes to assist families. Goals of these processes include reducing cost, resolving issues amiably for the health of the family, minimizing stress and reaching terms of agreement that are tailored to each family. There are many excellent ways to resolve disputes without litigation but 3 of the most effective ways are Mediation, Mediation/Arbitration and Parenting Coordination.
Mediation is a process where the parties attend before a neutral and impartial mediator with or without legal counsel. Any type of dispute can be mediated including but not limited to parenting, child and spousal support, and property division. The mediator facilitates a discussion of each party’s interests and objectives and guides them towards a mutually agreeable resolution. The parties must both agree to the process. It is advisable to choose a trained, experienced family mediator whom is also a family lawyer. A family lawyer will have the knowledge to assist the parties in reaching appropriate terms that will be acceptable in a contract or court order and they can also ensure that the parties have considered important elements such as tax consequences. If agreement is reached, typically the mediator will complete a Mediation Report which outlines all of the terms of agreement. The terms can then be included in a contract and/or a Court Order.
- More cost and time efficient as compared to litigation. Often, multiple issues can be resolved in one day;
- Parties can tailor the agreement to fit their circumstances;
- The parties control the outcome as both must agree to all terms;
- Conducted in a relaxed environment where each party has the opportunity to voice their perspective, speak to counsel and take breaks when needed;
- Mediation is confidential.
Mediation/Arbitration is a two-part process where parties start in the mediation phase as described above. If agreement is reached in mediation, the process is concluded and the parties proceed to obtain a contract or a Court Order. If agreement is not achieved in mediation, the parties must enter the arbitration phase and the “mediator” changes their role to “arbitrator”. The arbitration process can be informal (i.e., evidence by affidavit) or more formal (i.e., evidence given in person with legal argument, similar to court proceedings). After the arbitrator gathers the evidence and hears argument, they make a decision on all of the issues pursuant to the law, just as a Judge would do. The end result is a written Arbitration Award made by the arbitrator that is binding and enforceable, similar to a Court Order. Arbitrations are conducted pursuant to the Arbitration Act of Alberta, RSA 1980, c A-43 and may be appealed to the Court. Benefits include:
- The parties can choose an arbitrator with expertise in family law. Often times, a Judge drawn in Court will not have a family law background;
- The arbitration process can be adjusted to be cost and time efficient, and informal if desired.
- Typically, the process is less time consuming, less expensive and more responsive to the needs of families as compared to Court.
Parenting Coordination (PC)
PC assists separated parents to co-parent on an ongoing basis, typically for a term of 2 years. PC commences after parents have obtained a Parenting Order or Agreement. Parents choose a parenting coordinator, whom is usually a family lawyer or a mental health professional with extensive training. Once retained, the PC will address any immediate issues but will also help to resolve ongoing issues as they arise. The PC will first attempt to mediate issues, but if the parties cannot agree, the PC has the authority to arbitrate and make a binding decision which can be put into a Court Order. The process is designed to solve ongoing problems quickly and informally. Often times mediation is done via phone calls and emails. The PC can assist in many ways including:
- Help interpret vague terms in the Order/Agreement;
- Enforce terms in the Order/Agreement which are being breached;
- Help with decisions such as scheduling conflicts and activity choices.
Written by Wanda Dawson