The traditional approach to Family Law has favoured an adversarial practice with the engagement of the Court system. While there are certainly situations when this is appropriate to provide a resolution to the parties, there are often other approaches that are better able to deal with the breakdown of the family in a way that does not involve the Courts or traditional litigation.
With legislative provisions, complex Rules of Court and various regulations which must be followed, many people would prefer court litigation as a last resort when resolving a family dispute. Additionally, budgetary restrictions have stressed the Court system to the point where litigants are not having their matters heard in a timely fashion and client often feel the process is out of their hands once a judge is set to decide their respective matters. Given the above, there is a growing demand for alternative forms of dispute resolution or “ADR” amongst family law litigants.
Consequences of Relationship Breakdown
The limitations of the Court system are often magnified in Family Law matters given the unique nature of the consequences of a relationship breakdown. When a relationship ends, it can be an emotionally and economically challenging time for both parties. Likewise, if there are children of the relationship, they can suffer emotionally when the family is no longer unified in a traditional sense. Bonding of children to their parents is inevitably threatened. The economic stability of the children is likewise at risk.
The resolution of all areas of separation must be considered collectively to better facilitate families moving on from the breakdown of a relationship. This means dealing with not only the emotional aspects of a relationship breakdown, but also the economic and logistical difficulties that arise. If these problems are dealt with only in isolation, it may be more difficult for parties to resolve their issues arising from the breakdown of the relationship.
The Emotions of Separation
Regardless of the reasons, the breakdown of a relationship is a difficult emotional time for both spouses and their children. The parties are often not functioning at “full emotional capacity” during the initial separation, and this can often takes month, if not years to overcome. Unfortunately, many legally binding decisions are made in relatively short time period of time after the breakdown of the relationship. During times of such emotional distress, it is often advantageous for a spouse to obtain a lawyer who can act in full capacity and best interest of their client, without the emotional stress that accompanies a family law matter. Additionally, temporary arrangements, or “interim” arrangements can be made to deal with the immediate consequences of a relationship breakdown.
There are various forms of counselling that are available to spouses and children who are experiencing a family breakdown.
While traditional “marriage counselling” focuses on reconciliation, there are a number of counselling services designed to help families move forward. These services can help parties deal with emotional and economic parenting consequences of a relationship breakdown. It is important to consider these services to not only provide coping strategies, but also to provide therapeutic benefits. The better a person is able to cope with the emotional stress of a relationship breakdown, the better the outcome tends to be.
Types of Alternative Dispute Resolution
While many people envision a trial before a Judge to be the ultimate outcome of a family breakdown, the reality is that less than 5% of family law matters proceed to trial.
It is often preferable for separating spouses to settle their disputes by negotiation. The difficulties with negotiation are the emotional dynamics between the parties in the context of separation and the decreased ability for parties to act rationally in a highly emotionally charged environment. One party may desire reconciliation, there may be a guilty spouse, or a hostile spouse seeking revenge; these can all be factors that further limit the negotiation process.
The overall benefit of negotiation as a tool is that it leaves the decision-making authority with the separating spouses. It is also cost effective and can be time-saving for the parties.
It is important to have good negotiating skills in order to facilitate a constructive resolution of matters arising from the breakdown of a relationship. In this context, a lawyer may be helpful, as competent lawyers have specialized training in negotiation techniques.
What is mediation? Mediation is a form of settlement that allows for the self- determination of the parties, but is done with the aid of an impartial third party to assist the parties. A skilled mediator can assist the parties to communicate with each other, sift through the emotional discourse to determine the root issues that need to be resolved; can assist the parties in determining various options for a reasonable settlement. Mediation is not designed to be a form of counselling or therapy but rather a results-based process designed to produce a settlement between the parties. Mediators can take on many forms within the family law context. In private practice, mediators are often social workers, psychologists or lawyers. In Alberta, there are many mediation services that are provided through the Courts, including Court appointed mediation. When choosing one or more of these routes, a person must be very careful to ensure they are engaging the services of a competent and experienced mediator. In most family law matters, which typically involve issues such as parenting, support and a division of matrimonial property, it is often best to choose a mediator who is also an experienced family law lawyer.
Mediation is a viable alternative when ex-spouses wish to avoid the adversarial nature of the legal process, but are unable to communicate directly with each other. Additionally, the self-determined nature of mediation, can often lead to a more lasting settlement that those ordered by the Courts. While one may choose to enter into the mediation process without a lawyer, having legal counsel “in your corner” during mediation is a proven effective strategy to ensure your interests are being protected, while at the same time facilitating a workable settlement.
While mediation is a useful tool, it may not always appropriate for separating spouses. In some cases an imbalance of power may render mediation inappropriate; though these imbalances can be mitigated by a competent family law lawyer acting on your behalf during the mediation process. People with an uncompromising mentality, or who insist on winning-at-all-costs are likewise not appropriate candidates for mediation. Mediation by its very nature requires a given-and-take approach.
Role of Mediator
When one hires a lawyer to act on their behalf, it is the role of the lawyer to advocate for his or her client. Mediators on the other hand, are meant to act as a neutral third party to facilitate a workable settlement for the parties. Mediators are not to take sides or act in a biased fashion. This is does not necessarily mean a mediator must be passive. An experienced and competent mediator will intervene when necessary, refrain or otherwise facilitate communication between the parties, and provide creative solutions for various problems that may arise from the breakdown of the relationship. The most important thing to remember about mediation is that the mediator cannot make decisions for the parties. Ultimately, if parties are unlikely unable to reach a settlement on their own accord and in a manner that preserves their respective control over a settlement, than arbitration may be a more viable route to resolving conflict that can arise from the breakdown of a relationship.
While mediation of family disputes leaves the control of the decision making to the parties. Arbitration, or more specifically the arbitrator, can act as the decision-maker or “Judge” and make binding decisions for the parties if they are unable to reach settlement. Private arbitration is recognized in Canada as a binding alternative to mediating in the Courts.
Arbitration can have numerous advantages over traditional Court litigation. Firstly, and unlike the Courts, the parties can directly choose their arbitrator. An arbitrator can be selected based on the nature of the dispute between the parties, their financial means and the expediency they wish to resolve the conflict between them. As stated above, arbitrators, like mediators are often experienced family law lawyers and as such, have specialized experience in family law matters. Additionally, arbitrators are often more available and more convenient than the Courts. Arbitrators can often streamline the binding process by being less procedurally cumbersome than the Courts and traditional litigation. While a private arbitrator must have their fees paid for by the parties, in certain circumstances, the overall cost of arbitration can be less than traditional litigation.
While arbitration carries several advantages, it can likewise be disadvantageous to the parties if there are concerns about due process. Unlike Judges, or agreed to otherwise, arbitrators are not bound by the substantive and complex procedural laws that all Courts must follow.
At a first glance, mediation and arbitration may seem like mutually exclusive approaches, but one need not function to the exclusion of the other. Mediation/arbitration is a process that typically, begins with mediation, with the understanding that if no agreement can be reached between the parties, the mediator will then act as an arbitrator who can give binding decisions. The threat of unresolved issues proceeding to arbitration is often enough to emphasize to help to parties the desirability reach a settlement of their own making.
As described above, there are numerous processes that act as an alternative to traditional litigation. In all those processes, it is advisable to speak to a family law lawyer. Having “someone in your corner” to advise you of your legal rights and advocate on your behalf is a useful first step in engaging in any form of ADR. Likewise, the lawyer acting on your behalf may, if necessary, advise you to take a more traditional litigation approach if the circumstances warrant. While the breakdown of the relationship is a difficult and life changing event, it can be comforting to know there are alternative methods of dispute that can speed healing and allow both parties to move forward with their lives.