You can decide that you want to use ADR at any point in your family law case, including before you start any proceedings in family court. In this situation, if the ADR is successful, you and your ex-partner will not need to go to court, but if it is not, you can begin a court case to resolve your differences.
Mediation, arbitration and collaborative family law are all types of ADR. You cannot be forced into ADR for a family law case; it is not mandatory, and both you and your ex-partner must agree to it.
ADR is not appropriate for every kind of dispute. In particular, ADR may not be appropriate if your ex-partner was abusive or violent or tries to bully or scare you. If your ex-partner has more power than you do (whether because of abuse, level of education, self-confidence, familiarity with Canadian laws, or comfort with speaking English), ADR may not work for you.
ADR is only likely to be successful if both you and your ex-partner respect one another, can listen, be open and honest in your communications and are willing to compromise in order to reach an agreement that is acceptable to both of you. It is not likely to be successful if your ex-partner uses the process to continue to manipulate, intimidate and control you to get what he wants.
By its very nature, ADR assumes the participants have an equal ability to negotiate about important issues. If you are threatened or intimidated by your ex-partner, you may be coerced into making agreements that do not ensure safety and freedom from control for yourself and your children.
If you are still experiencing threats and continue to fear for your own safety and the safety of your children, ADR may not be appropriate for you.
There are three main types of ADR that people use to resolve family law disputes.
A mediator can help you and your ex-partner come to an agreement by talking with each other, even if you were initially in conflict.
Mediators are generally social workers, psychologists or lawyers. A mediator is required to be fair and not favour one person over the other. They do not tell you how to resolve your dispute, but they will make suggestions about possible resolutions. It is up to you and your ex-partner whether you do or do not accept those suggestions. Even if the mediator is a lawyer, they cannot give you legal advice.
For this reason, it is important for you to work with a lawyer as well as the mediator through this process. You should seek independent legal advice at an early stage of the process to clarify your legal rights.
Because mediation, like other kinds of ADR, is voluntary, either you or your ex-partner can end the process if you are not happy with how it is going, in which case you can try another method of ADR or go to court to resolve your dispute.
At the beginning of the process, the mediator will conduct separate screening interviews with you and your ex-partner to ensure that both of you are participating voluntarily and to assess the history and extent of abuse in your relationship. If the mediator feels mediation is not a good fit for you, they will tell you so.
Once the initial interviews are complete, the mediator will, typically, meet with both of you to discuss issues and work toward a settlement. In cases involving woman abuse, the mediator may use shuttle mediation, which means the two of you are in separate rooms.
If the mediation is successful and the two of you come to an agreement, then the mediator will draft a memorandum of understanding which you both sign after you agree that it accurately reflects what you have agreed to. You should have a lawyer review this document before you sign it.
In arbitration, people hire a third person to resolve their conflict. The arbitrator cannot grant a divorce or issue a restraining order, but they can decide on custody, access, support and/or division of property issues. The arbitrator’s decision is similar to a court order. The arbitrator must use Canadian or Ontario family law to make their decisions and can only decide on issues you and your ex-partner have asked them to address.
As with mediation, it is very important for you to have your own lawyer to assist you through the arbitration process. Although there are significant differences between arbitration and mediation, the same concerns and cautions about using mediation in situations involving woman abuse apply to arbitration.
Arbitration can be expensive, as you must pay for your lawyer as well as the arbitrator. For this reason, it is not an option for many people.
Collaborative Family Law
Collaborative family law is a relatively new form of ADR, in which you, your ex-partner and both of your lawyers work together to resolve the issues. This can be a faster and cheaper process than going to court if you and your ex-partner respect one another and can work together to solve your problems. Where there has been a history of abuse, collaborative law is less likely to be appropriate or successful.
The collaborative law process is different from the traditional lawyer-negotiation process in several ways, including:
Additional training is required before a lawyer can be a collaborative lawyer.
All issues are addressed in four-way meetings with you, your ex-partner and both of your lawyers present rather than through exchanges of correspondence.
This is a client-centred rather than a lawyer-driven process. You are in control of the process (i.e., the order in which issues are addressed, the discussion of the issues, the exploration of potential outcomes), with the lawyers remaining in the background to provide guidance, oversee the process and intervene when necessary.
A lawyer must resign from the process if their client is not abiding by collaborative law principles, which include producing all documents in a timely manner and negotiating in good faith.
You and your ex-partner will be encouraged to create a resolution that suits the needs of your family, which may be different from the outcome if traditional legal principles were applied. How the law applies to your case is only one factor to be considered.
If you and your ex-partner are not able to resolve your issues and a court case becomes necessary, the collaborative lawyers cannot take the case to court. You must start fresh with new lawyers.