Disputes should be expected in families. With all the emotions at play in family relationships, marriages, divorces, deaths, and other major life events can become stressful and difficult to manage.
It is how these disputes are resolved that can help define families.
Fortunately, litigation is not the only resolution option for such disputes. Courtroom trials can heighten tensions, delay the process and increase costs.
Several alternative dispute resolution methods, such as mediation and arbitration, can help you resolve matters more rapidly, affordably and amicably than through the courts.
In fact, the federal Divorce Act now encourages disputing families to consider alternative options to litigation whenever possible.
Let’s take a look at how alternative dispute resolution methods can help, what they involve and whether there are any downsides to the process.
Families working together to solve disputes
Trials are adversarial processes where a judge effectively names a winner and a loser. Attempting to resolve disputes by working together as a family is often in the best interests of all parties and can help preserve — rather than destroy — important family relationships.
The three main alternative dispute resolution methods are mediation, collaboration, and arbitration and these processes are summarized below.
Mediation is a process where two or more disputing parties hire a professional and independent mediator, who is often (but not necessarily) a family lawyer certified in mediation.
Often used in divorces but also a viable method for many other types of family disputes, the mediation process involves a mediator attempting to facilitate an agreement between the disputing parties. The final decision remains with the family members, and the mediator cannot provide legal advice to either party (only explain the consequences of any decisions).
In divorces, mediation can help resolve issues such as child custody and parenting, property/debt division, spousal support and so on. Even if the parties are wide apart in their expectations at the beginning of the process, a trained mediator can help look for common ground.
As long as there is a spirit of working together and compromise, anything is possible in mediation.
At the end of the process, disputing parties can either sign a binding agreement or move on to another dispute resolution method, such as arbitration.
Learn More → How to Succeed with Your Alberta Divorce Mediation
A collaborative law process involves each disputing party hiring a lawyer and holding meetings to try to iron out the issues between them.
Again, this process is often used in divorces. Lawyers may also hire other specialists (such as financial, parenting or health specialists) to support their positions and push for the best possible settlements for their clients.
Like with mediation, the disputing parties remain in control of the final decision — not the lawyers. You can work with your lawyer and the disputing party to find a solution that works for your family using interest-based negotiation techniques.
While rarely a completely stress-free experience, collaborative dispute resolution is generally less stressful than litigation. It also keeps matters private rather than airing them in the public forum of a courtroom.
With collaborative law, all sides agree that if a settlement cannot be reached, new lawyers must be hired before going to court.
Arbitration is another option that shares some of the benefits of collaboration and mediation when resolving family disputes.
This is where a neutral third-party arbitrator listens to the arguments of the disputing parties (like in a trial) and decides on the dispute.
An arbitrator is similar to a judge and the decision is legally binding — the parties must agree to abide by the decision of the arbitrator before the process commences.
Arbitration is more informal and usually quicker than a courtroom trial because minimal scheduling around other cases is required and it is not dependent on the workload of the courts.
Why family litigation is not recommended unless necessary
Sometimes, a trial is the only way to settle matters. But, for families, it should be a last resort that is turned to when nothing else works.
If mediation, collaboration or arbitration is an option, it’s often in the best interests of families to pursue these methods before litigation. Solutions may be achieved cooperatively, affordably, and rapidly and the outcomes are more likely to last.
Conversely, family litigation is a complex, formal and time-consuming process in which disputes are resolved by a judge, following a public trial. Even with litigation, there may be opportunities to resolve the matter before a trial.
However, if the case proceeds to trial, you can expect the following:
- Higher costs than with alternative dispute resolution methods: both the legal fees and court fees add to the overall costs.
- An adversarial process: both sides set out to “win” by presenting evidence and testifying against the other family member, often further damaging family relationships.
- An outcome that is a win/lose: the nature of trials means that the judge must order in favour of one of the parties.
- A public process: trials are in the public eye whereas mediation, arbitration or collaborative law remain private and behind closed doors.
- A longer process: family law cases can take years to resolve if you go through the courts whereas alternative dispute resolution can see results in a matter of months.
- A more formal process: whereas mediation or collaborative law can be held in informal settings, courtroom proceedings are always more formal.
- Loss of decision-making control: if you ask a judge to decide, you hand over the decision-making ability that you maintain during mediation or collaborative law,
Are there any problems with using alternative dispute resolutions?
While alternative dispute resolution methods have an excellent track record of resolving family disputes in Alberta, there are a few drawbacks to be aware of.
Firstly, with arbitration, unless you write an appeal process into your agreement, you cannot appeal the decision of the arbitrator.
Next, with alternative dispute resolution methods, you rely on the impartiality of the third party overseeing the matter. With a judge in a court, this is presumed, but a mediator or arbitrator may not offer the same level of assurance that you will get a fair hearing.
Other potential problems with alternative dispute resolution are the lack of a guarantee over a resolution and a lack of precedents, meaning that previous casework can only be referred to as suggestions during the resolution process.
Generally speaking, alternative dispute resolution offers several excellent options for families locked in disputes and aiming to avoid litigation. However, you should go into the process with an awareness of the pros and cons of each method.
At Jennings Family Law in Calgary, our lawyers can help you resolve even the most complex family law disputes using alternative dispute resolution methods. Book a confidential case evaluation to get started.