It is common in family law for disputes to arise in Alberta. While many people think of court trials for divorce cases, the fortunate truth is that few disputes end up in litigation.Many family disputes are resolved with alternative dispute resolutions (ADRs), which are generally less expensive, less time-consuming and less adversarial ways to reach settlements and to avert full-blown legal conflicts.
These alternative dispute resolutions are particularly beneficial when children are involved, as they may save undue stress and worry about both the children and the parents. ADRs can help all parties walk away with a manageable solution — without a “winner” and a “loser”.
Let’s take a look at the various ADRs and what you can expect if you are involved in a family dispute in Alberta.
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Alternative dispute resolutions are methods of negotiating and settling legal disagreements — and are often used in family law disputes.
These methods are frequently preferred in legal cases in Alberta because the workload within the family court system is high, and the authorities are keen to relieve the pressure. If disputes can be settled without litigation, it is beneficial for all parties involved. There is even an alternative dispute resolution institute in Alberta to facilitate the process.
In many cases, the assistance of a family lawyer is still required to reach agreeable settlements. For some alternative dispute resolution methods, this is optional but, in others, it’s an expected and necessary component of the discussions.
In all cases where alternative dispute resolutions are employed, the goal is for both parties to work together towards win-win situations.
Often, family law and divorce disputes involve the following key matters:
Let’s take a look at the main ADRs and how they can help resolve such issues in Alberta.
The family law mediation process may involve no lawyers, one lawyer, or even two or three lawyers.
Mediation is when a trained mediator attempts to facilitate a resolution between two disputing parties. Importantly, the mediator does not make decisions and cannot give legal advice, but merely facilitates the process and explains each party’s rights as necessary.
The mediator is often a lawyer, although it is important that this lawyer is impartial and has not represented either party. Other trained mediators do not practice law. Mediation sessions often involve just the mediator and the two spouses, but one or both parties may choose to have legal representation (so, three lawyers could be present, including the mediator).
Arbitration combines elements of mediation and litigation.
Similar to mediation, a private, mutually beneficial, out-of-court decision is sought from the arbitration process. However, unlike mediation, the final decision is taken out of the disputing parties’ hands.
Before arbitration begins, the two parties agree that the final decision of the arbitrator is legally binding, as that of a judge would be in court. The arbitrator is often a lawyer or even a retired judge with the necessary experience in resolving such matters fairly and according to all relevant laws. The arbitrator’s fees are on top of any lawyer fees paid for representation and may be shared between spouses or paid by one of the parties.
Each party in the arbitration is usually represented by a family lawyer, but this is not strictly necessary. Arbitration is often the preferred option where disputes are challenging to solve through mediation or collaboration, but both parties are looking for a quicker, cheaper solution than litigation (arbitration may take as little as a month or two while the litigation process takes a year or more).
Another key difference between arbitration and litigation is that the arbitration process is less formal and remains private, but court trials are public.
Parenting Coordination is another form of alternative dispute resolution for co-parents, helping them to resolve conflicts.
In Alberta, this is a voluntary process that requires the consent of both parties to engage in. Parents work with a parenting coordinator to resolve their issues through mediation, counselling and education — to reach a mutually beneficial agreement in the best interests of the children.
If negotiation, mediation or collaboration fail to produce an acceptable agreement, each party still has the right to go to court and plead a case.
However, this right generally does not apply to arbitration, as both parties agree before the process starts to abide by the decision of the arbitrator.
Mediators or collaborative lawyers involved in previous sessions cannot represent either party if the case goes to court.
With arbitration, the arbitrator will write a decision, which can be registered with the local court as a judgement.
Other alternative dispute resolution methods, if successful, will result in a separation agreement being formulated. This will be prepared as a legally binding document that reflects the terms of your settlement and confirms that all matters are now resolved. One of the parties must apply to the courts for a divorce and file the agreement if this has not already been done.
Note, however, that no divorce in Alberta is complete until a judge has signed off on it and the divorce decree is issued.
Our experienced family lawyers can help you resolve even the most complex family disputes. Book a consult online with us to protect your rights and discuss your legal options.
Call (403) 316-0138 or email warren@jenningsfamilylaw.com.
