Moving Forward: Alternative Dispute Resolution and Collaborative Family Law
Written on behalf of Shariff & Associates
Alternative Dispute Resolution (also referred to as “ADR”) refers to constructive tools and processes available to families outside of court as an alternative to traditional litigation. These methods promote and foster environments for cooperation and mutual understanding between the parties, while reducing the emotional and financial strain often associated with court intervention. In family law cases, ADR can provide a more personalized and flexible process tailored to each family’s unique needs.
This blog post will provide a general overview of common Alternative Dispute Resolution methods used in Ontario family law, specifically: mediation, arbitration, and collaborative family law.
What is Mediation?
The definition of mediation from Family Mediation Canada is as follows:
… “[F]amily mediation” is defined as a co-operative, 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 in family law aims to facilitate constructive dialogue and mutual agreement between parties, fostering a co-operative atmosphere. It seeks to empower parties to actively participate in resolving disputes, focusing on their interests and promoting a fair and sustainable outcome, particularly regarding children’s welfare and family relationships.
Mediators listen to the parties and try to foster an agreement between them. They act by following Family Mediation Canada’s “Code of Professional Conduct,” which imparts several goals for the process. Its main objectives include ensuring mediators maintain impartiality, competence, and confidentiality; act in the best interests of parties, particularly children; provide a safe and respectful environment; and uphold the integrity of the mediation process.
The mediator does not make any “rulings” or push agreements between the parties. Instead, mediation is a guided process in which the parties are primarily in charge. As a result, parties can understand the importance of letting go of the adversarial mindset, which leads to quicker, less costly, and more mutually satisfactory outcomes.
What is Arbitration?
In arbitration, unlike mediation, ultimate control of the process and outcome is in the hands of the arbitrator. The parties agree on, and appoint the arbitrator, who then hears the parties’ arguments and renders a decision, much like the process of the court (albeit less formal).
Unlike mediation, the arbitrator is afforded the power to make decisions through the Arbitration Act. The Arbitration Act also outlines the requirements for arbitration agreements, the appointment and powers of arbitrators, the conduct of arbitration proceedings, and the enforcement of arbitration awards.
As mentioned above, the arbitration process is very similar to that of the courts. This means that parties lead evidence, and cross-examine the witnesses or experts leading such evidence. The parties make submissions and respond to the opposing parties’ submissions. This process mandates that the arbitrator must abide by the rules of natural justice, which essentially means that the arbitrator must treat both parties equally and fairly.
The benefits of arbitration include that a more formal process can help parties navigate a contentious dispute, often faster than litigation, with more control over the process.
What is Collaborative Family Law?
Collaborative family law, in contrast to mediation and arbitration, is not a defined process but rather a way of practicing law. The ultimate goal of collaborative family law is to reach a family-centred resolution outside of court through participation and collaboration of the involved parties.
Each party retains a specially trained collaborative lawyer and commits to reaching a mutually beneficial agreement without going to court. At the outset of the process, the parties enter into a “participation agreement” which outlines various elements, including the civility between the parties, a commitment to work together in good faith, and affirmation that the parties will cooperate with producing the necessary documents to facilitate the collaborative process. The lawyers and their clients typically agree that the lawyers participating in the collaborative family law process will withdraw if communications break down and a settlement is not reached. However, the parties and their counsel must agree to meet regularly to ensure that the matter moves forward in a productive and efficient manner. The ultimate goal of collaborative family law is to have the parties sign a separation agreement that represents a fair and mutually acceptable resolution of all issues.
In general, the benefits of collaborative family law include fostering a supportive, non-adversarial process focused on preserving relationships and finding mutually acceptable solutions. Unlike mediation, collaborative family law involves legal representation, providing legal advice and support. Unlike arbitration, collaborative family law allows parties to maintain control over the outcome without a binding decision.
Who Should Consider Collaborative Family Law?
Collaborative family law may be an effective option in comparison to other forms of alternative dispute resolution, particularly in cases involving:
- high-conflict divorce,
- couples with children, or
- couples seeking to prioritize their health and well-being in an effective manner.
At Shariff & Associates, managing partner Romaana Shariff is trained in collaborative family law and makes this the primary focus of her practice.
Contact the Collaborative Family Lawyers at Shariff & Associates for Trusted Dispute Resolution Assistance
Whether you are contemplating a separation or divorce, or are involved in a complex family law dispute, the skilled family law lawyers at Shariff & Associates are ready to help. Our trusted team will work to help you find a resolution through an amicable and collaborative process, such as collaborative family law. However, if litigation is necessary, we will provide superior advocacy for your case and ensure you are positioned for a fair solution. To speak with a member of our family law team about your circumstances, please contact us online or call us at 905-591-4545.