Custody, support and property division are typical issues ex-couples contend with in a separation or divorce. Unfortunately, not all separating or divorcing couples can reach an amicable agreement independently. Frequently, the situation dissolves into enmity and disputes as arrangements for life after cohabitation or marriage are finalized. In such instances, family lawyers have at their disposal a range of dispute resolution methods to help ex-spouses reach a settlement with which they are mutually satisfied.
Alternative dispute resolution
Alternative dispute resolution (ADR) is a suite of dispute resolution methods used to settle family law conflicts out of court. The methods are consensual and generally employ a more cooperative than adversarial approach to dispute resolution.
Family courts require parties first attempt to resolve disputes using ADR methods before resorting to litigation, except in circumstances where ex-spouses have a history of abuse. The most common forms of ADR used by family lawyers to help ex-couples iron out their family law issues are mediation, arbitration, negotiation and collaborative family law.
Mediation, also known as conciliation, is a process in which disputing parties negotiate issues they need a professional mediator’s help resolving, allowing ex-spouses and their lawyers to argue in favour of their interests in a neutral and non-combative environment. Mediators may meet with disputants together or separately as matters are negotiated.
The mediator’s role is purely facilitative as they can neither make decisions nor influence either party. They can only direct and guide disputants as they try to reach an agreement. At the end of the process, if a settlement has been negotiated, each party signs a legally-binding document covering the details.
Should mediation end in deadlock, family lawyers can seek resolution for their clients through arbitration. In arbitration, the matter under dispute is referred to one or more arbitrators selected by the disputing parties. Arbitrators listen to the arguments presented by both sides, review the evidence and render a decision at the end of the process.
While there are established procedures for arbitration, disputants can set mutually agreed-upon rules which guide the proceedings. The arbitrator’s decision is final and binding, except in extenuating circumstances involving fraud or collusion.
Negotiations involve ex-spouses and their respective lawyers working together to resolve issues. Negotiation takes many forms, including but not limited to email, telephone conversations and meeting face to face. Family lawyers guide their clients to make decisions regarding the issues that arise in divorce and then communicate the client’s wishes to the opposing party. It is not mandatory for disputants to engage lawyers in this process, but it is considered prudent to ensure your interests are safeguarded.
Collaborative family law
Collaborative family law is akin to negotiation in resolving disputes. The difference is that each party must have a lawyer on hand to represent their interest. Ex-spouses and their lawyers cooperate to settle issues that are in conflict.
There are no set rules governing this method. However, for collaboration to be effective, both sides must be committed to resolving their differences and reaching a settlement.
Litigation is perhaps the most familiar dispute resolution medium. Many people have had first-hand experience with it or have seen cases aired in the media. Litigation involves taking legal action against a person with whom there is a dispute. Family law lawyers represent their clients in court as they seek resolution in areas of conflict.
Litigation and arbitration are similar in that a judge or jury hears evidence and arguments from both sides and delivers a judgement at the end of the process. Litigation, however, is more adversarial and is subject to strict laws and the rules of the court. All parties must abide by the court’s judgement.
Litigation is comparatively more costly, time-consuming and emotionally challenging than other forms of disputes resolution.
Dispute resolution with an Oakville family lawyer
Family law matters can be contentious. Furthermore, negotiations for your interests in a dispute can be stressful. If you are involved in a dispute regarding a family law matter, allow us at Carpenter Family Law to help you. Our family lawyer in Oakville has over a decade of negotiation experience in family law disputes and can help you obtain a favourable outcome. Give us a call at 905-842-0635 or schedule a consultation on our online platform.