Alternative dispute resolution (ADR) is the resolution of disputes by methods other than traditional litigation. In other words, it is an informal, “out of court” procedure to settle a disagreement between parties either by way of negotiation, mediation or collaborative law. Which resolution method is most appropriate for the parties depends on the complexity of the issues involved in the case, the attitude of the parties and their willingness to settle the issues.
The issue of access to justice has been at the forefront of the family justice system and even led to various recent legislative reforms. Improving access to efficient, affordable and faster means of resolving disputes between families in order to foster an “equal” and “just” society has been a real challenge. This article explores the impact of the recent amendments to the Divorce Act, barriers to family dispute resolution and the different kinds of dispute resolution process that suit the parties’ case and individual needs.
CHANGING LEGAL LANDSCAPE OF DISPUTE RESOLUTION IN FAMILY LAW:
When Canada’s worst access to justice problems are listed, family law always makes the list. In an effort to remedy the situation, amendments to the Federal Divorce Act came into force on March 1, 2021. In essence, these changes are aimed to reduce the number of family law cases that make their way to the courts. The changes to the Act make it incumbent upon parties and their lawyers to consider and where likely, also pursue the use of ADR. This stems from the situation of the already overburdened courts coupled with the impact COVID-19 has generated on the courts.
The added strain on the need to consider ADR presents certain advantages when compared to litigation. These include and are not limited to:
- Parties can set their own timelines thereby making the process less expensive and faster.
- Decisions and outcomes can be customised to a great extent, keeping the best interests of the children in mind.
- Any resolution or agreement can be easily documented, is enforceable and serves the same purpose as a court’s decision.
- Some family dispute resolution processes can help improve the ability of the parties to communicate with each other, thereby mitigating any adversarial atmosphere.
BARRIERS TO DISPUTE RESOLUTION
1. Problems with the family justice system
There have been a number of concerns raised about the inaccessibility of the family justice system due to its adversarial nature, inordinate delays and the unaffordability of legal services One of the biggest challenges many people face during this period is navigating through the justice system. It has often been argued that the family justice system should be the last resort in cases involving divorce and that other ADR mechanisms should be explored. This is because the family justice system can actually contribute to increasing emotional turmoil between the parties often leading to the escalation of disputes rather than their resolution.
In an attempt to address these issues, the Law Commission of Ontario Report recommends that the government should create or enhance the multidisciplinary, multifunctional centres or networks that link with “trusted intermediaries” such as cultural centres. These multifunctional centres will gather together a group of professionals that can assist with both legal and non-legal problems. Strengthening collaboration between lawyers, social workers, and financial professionals, among others, who can find practical and long-lasting solutions for different family situations, is a more efficient way to deal with family issues.
2 Problems With Alternative Dispute Resolution Process
Protection of client confidentiality by mediators
Confidentiality is a critical element of successful mediation. In order for the mediator, lawyers and the clients to understand the central issues, the motivations, the pressure points and the risks of litigation, the participants must be assured the discussions cannot and will not be disclosed to others so they can talk openly without any inhibitions. This is, in turn, would also influence the conduct of the mediation sessions, for example, parties may be reluctant to divulge too much information in the fear that such discussions may be used against them in the court of law if the matter does not get resolved, thus compromising the purpose of alternate dispute resolution. Frequently, clients disclose private events, perceptions or issues in mediation they would not want to disclose to anyone. Explaining their concerns and fears is often critically important to them in order to resolve the conflict. If discussions with the mediator are not confidential and privileged, the mediation process, the mediator’s role and the potential for resolution are significantly diminished.
Unequal bargaining power
Before complying with their duty to encourage alternate dispute resolution, lawyers must be satisfied that it would be appropriate in cases involving domestic violence. First, the victim may not in all likelihood be safe in their homes while ADR is attempted. This is due to the abusive partner’s psychological and physical control over the victim. Abusers usually control the victims directly or indirectly, in ways that are not so obvious to an outsider. This could be through subtle gestures, the way they speak or even glances. This is turn would compromise the conduct of the negotiations by defeating the purpose of a free and functional discussion. It is for this reason that mediators should screen for domestic violence before every case and lawyers should canvass a safety plan, and an order from the courts when needed, including obtaining restraining orders.
Mediation is defined as a voluntary and confidential process in which the mediator, an impartial third party, facilitates open and respectful communication between the parties. Mediation allows parties to better understand and express their respective needs and interests, to share their concerns and to define the issues in dispute more clearly. As opposed to a formal hearing where a decision is imposed to parties, in a mediation process, parties are to find themselves options that could lead to mutually acceptable solutions. In particular, family mediation is defined as a cooperative, problem-solving process, in which a qualified and impartial third-party neutral, the mediator, assists mediation participants to resolve their disputes by mutual agreement. The resolution is to be voluntary and based upon sufficient information and advice for each person involved in the dispute.
Mediation and other forms of non-adversarial dispute resolution are being increasingly accepted as appropriate and effective first-line responses for families in transition.
Contrary to arbitration, in a mediation process, the mediator assists parties in reaching a solution but does not make decisions. A mediator is in no way an adjudicator of the dispute. The role of a mediator was discussed in McClintock v. Karam: “in order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling, and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement”
Even if the parties do not reach an agreement, mediation allows a focussed discussion identifying issues in the case. It can provide a form of catharsis, enabling the parties to acknowledge their actions and the impact of the same on the course of their case, a situation that can put them in a better mindset for a negotiated settlement. It can provide a better understanding of the opponent’s case if the matter were to proceed to court.
The terms of an agreement established during mediation are not binding until they have been incorporated into a written separation agreement or minutes of settlement, that has been signed by both parties and witnessed. It is highly recommended that both parties obtain independent legal advice with respect to any resolution arrived at in mediation before finalizing any agreement or minutes of settlement. This is to ensure that the agreement or minutes of the settlement are strong and less susceptible to attack. Independent legal advice is also important because it ensures that both parties fully understand their rights and obligations, as well as the effect the proposed agreement will have on their circumstances
OPEN v CLOSED MEDIATION
Of utmost importance is the decision of whether mediation shall be open or closed. It is extremely vital that a lawyer discusses with their clients what form of mediation would be ideal for their case.
Closed mediation means that what happens at your meetings is private or confidential. Where parties have agreed to closed mediation, the court cannot compel the mediator to testify. No one can repeat what was said during your mediation, except in rare situations. In closed mediation, only some documents can be used in court later. For example, income tax returns must be shared in a court case. Otherwise, only the things that you and your partner agreed on can be shared.
Open mediation means that anyone, the parties or the mediator can give evidence in court with respect to the course of the mediation proceedings.
Most mediation sessions are closed so that both partners can discuss their issues without worrying that a judge will know later what they said in mediation if they are to go to court later. But other times people agree to open mediation because they want to apprise the judge of the attitude during mediation including their willingness to come to a negotiated settlement.
Arbitration is perhaps the most popular and widely known dispute resolution process. Like mediation, arbitration also involves a neutral third party to render its decision. However, its fundamentals mimic litigation in that it utilizes an adversarial approach and the decision delivered by the arbitrator is final and binding. As discussed earlier, the role of a mediator is only to facilitate a reasonable and fair negotiation between the parties. The role of an arbitrator is completely inverse.
While arbitration was by its very nature developed as a binding process, it can also be non-binding. It is generally voluntary and parties normally can only be involved in an arbitration if they have agreed to be bound by that process.
The advantages of arbitration over traditional litigation are as follows:
- the parties can select the arbitrator(s);
- arbitrator(s) can be selected on the basis of experience relevant to the issues;
- the proceedings can be held in private and confidentiality may be preserved, subject to the Access to Information Act and Privacy Act;
- the rules of procedure can be as formal or informal as the parties and their counsel determine;
- The arbitration is flexible in that the sessions are scheduled according to the parties’ availability. It gives you the benefit of a trial like process without the long delays involved in the process;
- the cost of the proceedings can often be more easily contained;
- due to increased control of the process there can be a greater opportunity for settlement; and
- arbitral awards are final and binding which minimises the scope of further discussions between parties.
3. INDEPENDENT LEGAL ADVICE
Arbitration awards can’t be enforced in court unless both sides have received independent legal advice. An arbitration agreement must set out what the arbitrator can decide. Each person should get independent legal advice to help determine what issues the arbitrator’s award can address. This is to ensure that the process is fair and parties were well prepared in advance before it leads to further complications. Your lawyer will give you a certificate of independent legal advice before arbitration begins. A copy of the certificate must be attached to the family arbitration agreement if you go to court. It is important to note that a formal arbitration agreement, domestic violence screening, independent legal advice is not merely suggested but it is recommended as best practices. It is mandatory. Without it, no arbitral award is enforceable.
Med/Arb is a dispute resolution process that combines mediation and arbitration. Initially, the parties try to reach a settlement through mediation. If there are issues that are not resolved through mediation, an arbitrator (the same person who acted as mediator) makes a decision for the parties.
Med/Arb combines the advantages of both mediation and arbitration:
- Because parties are able to discuss in presence of a professional mediator, the process is likely to preserve relationships or even repair those that may have been damaged by the rise of the dispute;
- During the mediation phase, parties have control over the outcome and may find a win-win solution;
- A resolution is certain because if mediation fails, a decision will be rendered by a third party;
- The transition from mediation and arbitration is seamless;
- It is less costly and quicker than a court battle.
5. Parenting Coordination
Parenting Coordination is one of the most recent dispute resolution models to enter the Ontario family law realm, although it has been known and used for many years in other jurisdictions. Parenting Coordination is used exclusively to deal with parenting issues and is only possible once a final parenting agreement or court order is in place. One of the main functions of the Parenting Coordinator (PC) is to help parents implement the parenting terms of their final agreement/court order.
This resolution model includes two components: the non-decision making component and the decision-making component. During the non-decision making component of the process (the mediation phase), the PC assesses the family dynamics to obtain a better understanding of the parenting issues and challenges, educates the parties about child development matters and the impact of parental conflict on the children, coaches them regarding communication skills and parenting strategies, and mediates disputes as they arise.
During the decision-making portion of the process (the arbitration phase), which is triggered when resolution through mediation is not possible, the PC makes a binding decision on the issue in dispute after having provided both parents with an opportunity to be heard. During both phases of the process, the PC is generally given expanded investigative powers to assist in his or her mandate to mediate or adjudicate on the issue, such as the ability to speak with professionals involved with the family as well as the ability to interview the children, when he or she deems it necessary and in the children’s best interest to do so. Parenting Coordination is a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness.
Because a Parenting Coordination process has an arbitration component, s. 59.6 of the Family Law Act requires that the parties obtain independent legal advice prior to signing such an agreement for any resulting award to be enforceable.
Collaborative Family Law
Collaborative Family Law (CFL) is an exciting development in Family Law that has spread to Ontario via the United States and the Western province. Both clients select collaboratively trained lawyers who blend the communication skills of mediators with the problem-solving skills of lawyers.
CFL represents a paradigm shift from the traditional role of a lawyer. Fundamentally, a collaborative lawyer uses his or her skills to model and teach clients how to be more effective negotiators. Collaborative lawyers act as legal advisors and process facilitators, rather than decision-makers.
The key to CFL is that everyone agrees that they will not litigate and if one client decides to litigate, contrary to this agreement, both lawyers must withdraw.
In cases where the collaborative process is engaged, the procedure requires the parties and their counsel to sign a participation agreement or contract.
Collaborative family law is voluntary. That means you and your partner cannot be forced to use it, or forced to agree on your issues.
Collaborative family lawyers also agree in writing not to go to court. As a result, they are committed to helping you reach a settlement.
WHAT IS YOUR “BATNA”?
It is always wise to have a plan “B” in place. This is what BATNA refers to, your Best Alternative to a Negotiated Agreement. If your current negotiation reaches an impasse, what’s your best outside option?
For instance, some people may argue that litigation is the best alternative. There is still a vast majority of people who incline towards litigation and consider a win-lose outcome to be the most ideal. Others may argue that the chance of being successful in litigation is minimal and time-consuming, so the best solution would be another mode of ADR, that is more likely to result in at least some change.
It may be prudent to move backwards, by first considering what would be the party’s best alternative if a negotiated settlement were to fail and then consider what mode of ADR they should opt for.
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