ADR refers to Alternative Dispute Resolution, which is any form of conflict resolution other than litigation.
Litigation tends to be very expensive, and not always well suited to address family law and parenting issues, as it is inherently adversarial. Litigation in the civil or criminal context is usually focused on the past, where the parties will have no ongoing relationship. Family law disputes, especially when children are involved, are more future focused. The concern is not so much what has happened in the past, but how to best address the children’s and parties needs moving forward.
Pursuant to section 8(3) of the Family Law Act, family law dispute resolution professionals (which includes family lawyers), have a duty to discuss with the party the advisability of using various types of family dispute resolution options to resolve the family matter and to inform the party of the family dispute resolution resources available. (A family law dispute resolution professional must screen for family violence first. (see: https://hart-legal.com/family-law/family-violence-in-the-family-law-context/)
The following are the most common types of alternative dispute resolution options available in the family law context, from the most informal to the most formal:
- Kitchen Table (party to party) Negotiations
- Lawyer Assisted Negotiations
- Four Way Meetings
- Collaborative Law
- Family Justice Counsellor
- Non-lawyer assisted mediation
- Lawyer assisted mediation
- Judicial Mediation:
- FCC/JCC/Settlement Conference
- Parenting Coordination
Kitchen Table (party to party) Negotiations:
Depending on the level of conflict between the parties, and the issues in dispute, there is a possibility that parties can reach an agreement informally between themselves. When appropriate, I will sometime suggest clients speak to the other party as see if the can come to an agreement. If the parties do come to an agreement, a lawyer can then draft the agreement in a binding and enforceable separation agreement, or court order.
Lawyer Assisted Negotiations:
When parties are unable to negotiate directly between themselves, negotiations can be conducted by lawyers. If the matter is relatively straightforward, and the parties are generally in agreement, lawyers can negotiate an agreement on behalf of the clients, and then formalize the agreement in a separation agreement or court order.
Four Way Meetings:
A four way meeting is when the parties and their lawyers all meet together. This process can be effective when the level of conflict is low, and the parties are close to an agreement, but there are details needed to be worked out. Having both parties and their lawyers in the same room creates an opportunity for all issues to be address and solutions discussed. A four way meeting is often effective in reaching an agreement when the parties are close, but negotiations have broken down.
Parties sign a participation agreement to resolve matter by agreement outside of the court system. Parties agree not to go to court during the collaborative process. If the process breakdowns, the parties need to retain new lawyers for the litigation process. Often other third party experts are involved, such as child specialist, business valuators or accountants. The collaborative law process uses other ADR methods, such as four way meetings and mediation.
Mediation is a voluntary process involving a neutral third party, who works with the parties to facilitate commination and assist them in resolving their dispute. The mediator has no decision making authority, and all settlements are consent. There are various types of mediation, and different resources for mediation:
Family Justice Counsellors:
Family Justice Counsellors are a free resource at some Provincial Courts which will provide free mediation for issues relating to parenting and support. Some Provincial Court registries require parties to attend mediation with a Family Justice Counsellor prior to proceeding with an application in court.
Non-lawyer assisted mediation:
Often parties will choose to attend mediation without the assistance of lawyers. This can reduce the cost, as the parties are only paying the mediator, and not their lawyers to attend mediation. This type of mediation often occurs over multiple sessions, and the parties would be strongly encouraged to obtain independent legal advice prior to finalizing any agreement.
Lawyer assisted mediation:
Most mediation in the family law context involves lawyers attending mediation with their clients. These mediations will generally occur over the course of one day, and will often continue into the evening if parties are close to an agreement. Agreements are often in the form of Minutes of Settlement or a court order, and are signed at mediation, and later entered with the court if necessary.
Judicial Mediation (FCC/JCC/Settlement Conference):
As part of the court process, there are case conferences, which are essentially mini mediations conducted by a judge. In Supreme Court, it’s called a Judicial Case Conference (JCC), and is generally mandatory prior to bringing any interim applications (although parties can be relieved of that requirement in appropriate cases). In Provincial Court they are called Family Case Conferences (FCC), and are a mandatory first step in most Provincial Court registries.
There are also settlement conferences in civil litigation and small claims.
At a FCC or JCC, judges do not have the power to make substantive orders, everything must be by consent of the parties, except order regarding disclosure or procedural issues.
The purpose of an FCC or JCC is to determine what matters can be settled between the parties, and what issues need to be litigated.
Parenting Coordination is a child centered process that included consensus building and then determination making of partnering issues. In order for a parenting coordinator to be appointed, there must be a parenting order or agreement in place first, which the parenting coordinator will enforce the order. Parenting coordinators are often appointed in case where parties end up in court often over parenting issues. A parenting coordinator keeps them out of court by trying to resolve conflict between the parties, and if the parties cannot come to an agreement, the parenting coordinate may make a determination, which is binding on the parties, but reviewable by the court. Parenting Coordinators are generally appointed for one or two years. Parenting coordination is similar to mediation-arbitration, but only dealing with parenting issues, and generally it is conducted through email and over the phone, not in person.
Mediation-Arbitration is a hybrid process that often involved a single neutral third party retained to conduct the mediation and the arbitration, although there can be two separate people acting as the mediator and arbitrator. At first, the parties attempt to resolve the matter though mediation. If the parties are unable to reach an agreement the mediation is terminated, and the parties move to the arbitration stage. In the arbitration stage, the arbitrator imposes a binding decision on the parties.
Arbitration is a private form of adjudication that is decided by a neutral third party who can impose binding decisions. The adjudicator is like a private judge that is hired by the parties to decide the issue. The parties have a lot of control over the process in terms of how evidence will be adduced. Although the parties must pay for the arbitrator’s time, it can be more cost-effective than litigation, as you are guaranteed that your matter will proceed as scheduled, unlike court where matters are often cancelled due to lack of court time. Also, arbitrations can generally be scheduled within a few months, whereas it can take over a year to get trial dates. The cost can be awarded to the successful party.