Alternative Dispute Resolution, commonly known by its acronym “ADR”, is an alternative method parties can turn to in order to settle disagreements. In ADR, the parties attempt to come together and discuss the issues in the hopes of reaching an agreement in their matter. Most importantly, ADR facilitates a more direct approach to settling matters and tries to avoid the often costly and unpredictable court proceedings.
While ADR can be beneficial to the parties in trying to reach their shared goals, the parties must enter into any ADR voluntarily, and with an open mind, willing and ready to work with each other. If the parties are not able speak with each other, or there is a significant power imbalance between the parties, ADR is not an advisable option.
Four types of ADR
There are four types, or methods, which parties can choose when using ADR. These are as follows:
Negotiation is, or can be, the least formal ADR option. It can be more formal, with lawyers assisting in the negotiations and discussions. It can also be less formal, with the parties entering into discussions between themselves to try and reach an agreement.
Any agreement reached should be in writing. The legality of such an agreement is discussed below.
Mediation is when the parties enlist the assistance of a mediator to help the parties discuss and come to an agreement. Mediators more typically are lawyers, but other professionals, such as social workers or psychologists can also act as mediators as well. However, it is advisable to speak with a lawyer prior to entering into mediation, in order to ascertain what the law is and to know your rights and obligations.
If parties choose to enter into mediation, they will have to decide whether it will be open or closed. In closed mediation, all discussions between the parties are confidential and cannot be used as evidence against the parties. The mediator will also not report to the court or lawyers on the progress of the mediation, or provide an opinion on the issues to discussed to anyone outside the mediation.
In an open mediation, the process is not confidential and the mediator may be allowed to prepare a report upon the completion of the mediation.
Arbitration is a more formal method of ADR, where the parties hire a third party to resolve the conflict. The arbitrator can decide on matters such as access, custody, support and property divisions, but cannot grant a divorce or an annulment.
There are a number of important distinctions between mediation and arbitration. One is that once the arbitration begins, neither party may “walk away”. The parties must obey the decision of the arbitrator, so long as the decision follows the law. Another distinction is costs. The parties will usually have to pay the arbitrator, as well as their lawyers, if they choose to hire one.
4. Collaborative Family Law
Collaborative family law is the final method of ADR, which enables couples to come together and work with their own team of trained lawyers and professionals who assist with the intricacies of the matter. Collaborative family law aims to achieve a settlement that best meets the specific needs of both parties and the children involved. The goal is to negotiate and come to an amicable agreement and avoid litigation of any sort.
The premise of collaborative divorce is based on honesty, respect and cooperation between all parties involved, including the parties’ lawyers and third-party professionals. Without these integral aspects, collaborative family law cannot not work.
Is ADR Legally Binding?
This can be somewhat of a confusing topic. Agreements reached through Negotiation or Mediation are not legally binding. Although, if the parties choose to file the agreement with the court, it will become legally binding. However, agreements reached through Arbitration and Collaborative family law are legally binding.
Benefits of ADR
There are a number of benefits which attract parties towards ADR and away from the courts. As previously discussed, the costs alone can sometimes be the determining factor in parties choosing ADR. ADR also gives the parties more control than in court proceedings, and it allows them to focus on the issues in a direct and meaningful way.
ADR often provides the parties with a process which is less psychologically and emotionally stressful than courts proceedings. Court proceedings can be daunting for many people, and being able to avoid going to court sometimes allows parties to be more at ease and more readily willing to work together.
ADR also allows the parties to enter into discussions and negotiations which will remain private. Once parties go to court, the matter becomes more public.
Regardless of the method you choose, it is always important that you seek legal advice and guidance before commencing ADR.
Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law.