Mediation? Arbitration? Collaborative Divorce? What is the Difference?
Alternative Dispute Resolution (ADR) mechanisms are an efficient and increasingly popular way to resolve some Family Law disputes without having to resort to full-blown litigation. Since they all involve settlement of issues outside the realm of the traditional justice system, they tend to be more expedient and cost-effective.
While various ADR mechanisms have unique focuses and processes, many have similar features which can make them difficult to distinguish. Here are the three most common kinds of ADR:
The mediation process features the involvement of a trained mediator who helps couples resolve their legal disputes through negotiation. Mediation tends to be an informal process: it is geared resolving issues or at least identifying common ground between the parties, and therefore narrowing down the issues that remain contentious. (And if mediation fails, then the parties are still free to proceed to traditional litigation). In Ontario it can be used in connection with only certain matters which include child support, access and custody, and equalization of net family property.
In contrast to mediation, which is voluntary, arbitration is more similar to a formal court hearing – minus all the formality. Each party is given the opportunity to tell his or her side of the story to an impartial arbitrator, who then makes a ruling that is binding on them both. Although it involves a less rigid procedure than going to court, there are still certain protocols in connection with witnesses’ testimony, and with submitting evidence and documents. Arbitration can cover only certain Family Law disputes, such as spousal or child support, custody and access to children, and division of property. It cannot cover divorce, marriage annulments, and certain administrative changes to official family status and declarations of parentage. Once an arbitration award has been issued, it can be enforced though a simplified procedure that is governed by legislation.
The underlying philosophy of the collaborative divorce process is that the parties mutually agree to completely avoid the court process, with the result being a faster, cheaper and more amicable divorce. To achieve this, the parties each sign a contract prior to the start of negotiations, agreeing to full disclosure of information and setting out the principles of the collaborative process. Their respective lawyers – who must be trained specifically in collaborative law – also agree not to press the matter to court. (And if ultimately it turns out that settlement cannot be reached, then new lawyers have to be hired). There is a focus throughout the process on co-operation, disclosure, honesty, and the best interests of children.