Processes of Resolving Disputes
Commonly referred to as “Alternative Dispute Resolution or “ADR”
There are a variety of dispute resolution processes available to resolve family law issues which arise from the breakdown of a marital or common law relationship or arise subsequently sometime down the road. The following are ADR options.
One method people settle differences is through negotiations. Negotiations typically take place through written communications between the lawyers and four way meetings with the clients and their lawyers. It is a process where discussions take place about the issues, compromises are made and agreements reached. Successful negotiations result in the parties signing a Separation Agreement or other type of contract containing terms mutually agreed upon by the parties.
This process is particularly appropriate for individuals who have children together and wish to maintain a respectful and positive relationship with the other parent. The goals of this process are to work co-operatively; resolve disputes respectfully; and arrive at a settlement that best meets the specific needs and interests of both parties and their children. The parties and the lawyers are required to sign a Participation Agreement. By signing the Participation Agreement the parties and their respective lawyers are committing to providing full and complete financial disclosure. This is an important requirement as hiding assets or income in family law cases needlessly complicates and obstructs the process of achieving timely and fair resolutions. If the parties and lawyers are unable to resolve the outstanding family law issues through the collaborative process then it is necessary for the parties to retain the services of a new lawyer. The rationale for this provision is to ensure that the lawyers remain fully committed to the collaborative law process.
Collaborative law adopts a team approach as it relates to the parties and their respective lawyers. This team approach extends to involving outside professionals such as social workers, financial planners and facilitators when appropriate. The collaborative process is designed to facilitate creative solutions that are child focused and which best meet the interests of each party.
Mediation is the process where a neutral third party professional, experienced in the area of family law, assists the parties and their lawyers at arriving at a settlement of the issues in dispute. Mediation is a structured and interactive process which focuses on the needs, rights and interests of the parties. The mediator’s role is to facilitate the parties to reach a mutually acceptable agreement on the disputed issues. The value of the mediator’s non-partisan experience and training allows her/him to assist both parties and their lawyer toward a mutually agreed upon solution and agreement. The mediator does not advocate for either party and has no decision making authority.
There may be times when mediation is conducted without the direct participation of the lawyers. In such a circumstance the lawyer will meet privately with the client throughout the mediation process in order to provide the client information about his/her rights and obligations under the law and to discuss the progress being made during the mediation sessions.
Neutral evaluation is a dispute resolution technique and is voluntary. It can stand on its own or be integrated with other dispute resolution processes. This process involves presenting the case and the disputed issues to an impartial, senior, experienced family law lawyer who will render a non-binding reasoned evaluation of the merits of the case and the related issues. During this process the neutral evaluator may serve as a mediator or facilitator.
Decisions Made By Third Party
If the parties are unable to resolve their disputed issues voluntarily and by mutual agreement and require the involvement of a third party to make decisions for them they have two alternatives: agree to arbitrate in which case the arbitrator will make binding decisions or commence court proceedings where a Judge will make decisions in the form of court orders.
In arbitration the parties refer their disagreement to mutually agreed upon neutral third party professional, experienced in the area of family law. In this situation the parties have decided to retain the arbitrator to act as the decision maker of some or all of the disputed issues. The parties voluntarily sign an Arbitration Agreement which confers decision making authority regarding the disputed issues to the Arbitrator. Prior to signing an Arbitration Agreement the parties are required to (1) undergo screening for domestic violence and power imbalance. The purpose of this screening is to ensure that one party is not going to be threatened or intimidated by the other party during the process; and (2) obtain independent legal advice. The written decision of the Arbitrator, which is called an Award, is binding on the parties and generally, is recognized by the Courts as a binding decision.
In order to resolve the disputed family law issues the party may commence court proceedings. The Family Law Rules outlines the process, procedures and steps to be taken in any family law matter. The parties are free to resolve any or all of the disputed issues by way of an agreement at any stage in the court proceedings. In fact the Family Law Rules promote resolution of the disputed issues at every step in the court proceedings. The courts fully support the parties to engage in the above discussed alternative dispute resolution methods to resolve some if not all of the issues. Ultimately, if the parties are unable to resolve the disputed issues, a Judge will decide and make binding and enforceable court orders.
There are cases where arbitration may not be appropriate. The courts have the jurisdiction and authority to make orders that an arbitrator cannot make. As discussed above if there is a significant power imbalance between the parties, then the disempowered party should resort to the courts. In the case of child abuse and domestic violence the most suitable process would be to commence court proceedings. The court process affords the protection that may be required in such cases. The Courts have the authority to make restraining orders and orders for exclusive possession of the matrimonial home.
If there is a concern that a spouse is recklessly dissipating family assets or transferring family assets out of the country you may require a Court order freezing the other spouse’s assets thereby preventing the other spouse from depleting or transferring assets. If disclosure is required from third parties such as banks and other institutions courts can make disclosure orders against third parties. Courts can make findings of contempt and order sanctions. If the other spouse is unwilling to engage meaningfully in the resolution process the Court will move the matter forward with or without the resisting spouse.
The information on this website is provided for general information purposes only. It is not meant to be legal advice and is not to be relied upon. If you need information or legal advice relating to your individual circumstances you should consult with a lawyer. Lydia Moritz will be pleased to meet with you to discuss your specific circumstances and the applicable law.
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