You are lucky if you do not have a friend or family member with an account of an ugly courtroom battle during their separation and/or divorce. Often those unhappy individuals spent a frightening amount of money on lawyers and other experts during a running battle, which likely spanned years, only to arrive at an order that they may be lukewarm about or that even makes them very unhappy. In many such cases, the ability of the parties to communicate and parent cooperatively in the best interests of their children erodes as a result of the adversarial litigation process, until it eventually becomes impossible for the family to function absent strict court orders enforced by severe court consequences and perhaps even police enforcement.
Consider as well that the court is a public service and your case, once filed in the court, can be viewed by the public or other family members (with certain limited exceptions) upon payment of a small fee.
It is often possible to either keep your affairs out of the court entirely, or at least minimize your usage of the court process, if the parties are prepared to consider other options for resolving their issues.
Traditionally referred to as “Alternative Dispute Resolution (ADR)”, options like Family Mediation, Family Arbitration, the hybrid Med/Arb (i.e., mediation followed by arbitration for issues not resolved) and Collaborative Family Law Practice offer a means of addressing family issues, as well as a means of reaching a workable resolution of your issues tailored to your particular situation with little or no involvement of the court. These options offer many advantages over the court-based approach including:
- They are confidential in nature and not accessible to the public, other family members, or other third parties. This confidentiality allows an opportunity to preserve your privacy and resolve your issues in a more dignified and respectful manner.
- Since they rely on private resources rather than the institutional framework of the courts, they can be far more flexible in their timing as well as the speed with which issues can be addressed and agreements can be reached.
- These alternatives are often less expensive then more formal court proceedings and can be tailored to the specific resources and priorities of the parties. In some instances, parties may retain lawyers to assist them throughout the process, or perhaps only to review agreements, or perhaps not at all where appropriate.
- It can also be said that while family law resolutions must be reached “in the shadow of the law” (i.e., they must reflect the laws of the land if they are to withstand the scrutiny of the courts and be enforced by the apparatus of the law at some future date), they may also be tailored and specifically fashioned to address the unique needs of the parties while accounting for their own creativity, innovation and values in finding their own solutions to their problems.
WHAT IS COLLABORATIVE FAMILY LAW PRACTICE?
Collaborative Family Law Practice is a strategy of assisting people going through a breakdown of their relationship whereby each party retains a lawyer to assist them in negotiating a resolution of their issues in a cooperative rather than adversarial manner. It is understood and contracted that the lawyers retained will not represent the parties in court if they are unable to reach a resolution; accordingly, they are committed to resolving the matter through productive good faith negotiations resulting in a Separation Agreement signed by both sides.
If experts are required to value assets, assist in financial planning, address the particular needs of children with special needs or otherwise assist the parties to reach a viable and cooperative solution, then they are retained jointly to provide their expertise to both parties; this stands in stark contrast to the adversarial approach of retaining separate experts to provide evidence and then critique the evidence provided by the other side.
When successful, the collaborative family law strategy produces an agreement that addresses the needs of both parties in accordance with their legal rights, interests and priorities for parenting the children in a confidential and cost-effective manner. When it is not successful, the parties are free to retain new lawyers and proceed to the court system to seek the resolution of their issues through that process.
WHAT IS FAMILY MEDIATION?
Mediation is a voluntary process often described as an “assisted negotiation”. Both parties agree on a mediator, who is a neutral and unbiased third party, to assist them in negotiating their own resolution to their issues. A good mediator assists by helping the parties communicate productively with each other and focus on jointly problem-solving their disputes. A skilled mediator can often help people to uncover the deeper root causes of their conflict(s), help them identify shared and competing interests, and get past positional bargaining to reach workable and sustainable compromises; this will allow the parties to tailor their solutions to their own particular needs as well as the needs of their children and others who are counting on them. A good mediator provides and presides over a process through which the parties can safely find their own answers to their unique issues in a confidential and cost-effective manner.
When mediation is successful, either in whole or in part, it results in a memorandum of understanding which can then be provided to a lawyer to be drafted into a Separation Agreement. Where it is unsuccessful, the matters discussed remain confidential and the parties are free to seek other means of resolving their dispute.
Mediation is not always appropriate for parties, and both parties should be interviewed separately by a potential mediator to first assess whether they are appropriate candidates for the mediation process. Where the parties are both able to participate freely and meaningfully in the process, then mediation is often an excellent means of efficiently finding solutions to all the various issues that parties are facing on relationship breakdown – or even just laying out rules and addressing issues arising in an ongoing relationship. These issues often must be addressed in order to allow the parties to move forward with their lives, both as individuals and as parents, in a productive and workable fashion.
A mediator can help parties address – in a confidential and meaningful way – every issue that arises in a family law context including: custody and access issues, parenting plans, strategies for communicating with each other and the children, support and property divisions, family budgeting plans and virtually any other issue the parties bring to the table and identify as something that needs to be addressed.
WHAT IS FAMILY ARBITRATION?
Whereas mediation involves the assistance of a neutral third-party, arbitration involves selecting a decision-maker called an arbitrator to make a binding decision (i.e., “an award”) on one or more issues. An arbitrator is a mutually agreed upon third party who will listen to each side and review the evidence they provide in order to make a decision that will be enforceable against both parties. In this sense, an arbitrator is like a court judge, but one who is hired privately by the parties to provide a confidential resolution of their matter outside of the public court process. The arbitrator’s authority is founded in and limited by the Arbitration Act as well as the arbitration contract signed by both parties.
Family Law Arbitration offers several advantages over the court process. As a privately retained professional, the arbitrator may be mobilized more quickly than the courts to address issues that are urgent and cannot be accommodated by a busy court schedule. The arbitration hearing, the documents provided and the decision are also confidential and binding (note: an arbitrator’s award may be filed for enforcement through the court apparatus; in such a case,the award may lose its confidentiality in order to gain enforcement through the courts). Moreover, an arbitrator may be selected based on their expertise and experience with a particular matter or with particular parties. Lastly, it is often more cost-effective to use an arbitrator than to have a formal court proceeding.
Since an arbitration will result in a binding award from the arbitrator and is governed by evidentiary rules as well as procedural requirements, it is wise – and often required – that legal advice be sought prior to the arbitration, or even that lawyers be retained to assist in the arbitration to ensure that the parties’ participants rights are properly represented.
WHAT IS MEDIATION-ARBITRATION?
Mediation-arbitration is a blended two-stage process (also known as “Med/Arb”), which is still involves a privately hired third party who will provide both sides with a confidential resolution of their family issues outside of the public court process. At the outset of the process, both parties voluntarily make a contractual commitment to reach a decision on a specified list of issues such as property, support, and custody. At the first stage of this process, the agreed upon third party acts as a neutral facilitator (i.e, a mediator), and a mediation is held where every effort is made to resolve all of the list of issues in dispute. If both parties are able to negotiate an agreement on all disputed issues that reflect their overall needs and interests, then the Med/Arb process ends here at the mediation stage. However, if one, some or all of the listed issues remain unresolved following the mediation stage, then the parties are contractually bound to move to the second arbitration stage to resolve the outstanding issues. At this stage, the third party acting as an arbitrator makes a final and binding decision taking into consideration the laws of the land, the parties’ arguments and their presented evidence.
Med/Arb offers the comforting knowledge and relief that there will be final decision of all disputed issues in a timely basis. Where the parties cannot reach a consensus solution of their problems on their own through the mediation stage then the following arbitration stage will result in a binding resolution from the arbitrator. In this way, Med/Arb incentivizes both sides to negotiate in good faith and as openly as possible during the mediation, as they are fully aware that a decision will be made for them by an arbitrator if they fail to agree on all of the issues. The Med/Arb alternative also eliminates the delays and prolonged wait times associated with pursuing mediation and arbitration separately, and then perhaps engaging in litigation if those dispute resolutions processes end up being unsuccessful. Lastly, Med/Arb can be less expensive then engaging in both processes separately, since the agreed upon third party will already be familiar with the parties and disputed issues if there is a need to move on to the second stage of the process.