When it comes to resolving a family law dispute, there are many options available to the parties in terms of forum and method. Knowing which one to choose can be daunting, especially for those involved in high-conflict situations or in families where abuse may be a concern. Some parties assume court is the only option when a dispute has escalated past the point of constructive communication. Conversely, others may feel that an amicable separation negates the need for any type of formal process to determine the terms of a separation or divorce. Each situation has a unique set of circumstances which may lend itself to a particular type of dispute resolution process and it is important for individuals to keep an open mind when attempting to resolve a family matter.
The Obligation to Consider Alternative Dispute Resolution
In 2021, the federal Divorce Act underwent significant amendments. One change in particular now requires parties and their lawyers to explore alternative dispute resolution methods before resorting to litigation, unless it would be inappropriate to do so. This change was made to encourage collaboration between the parties, reduce the strain on the court system, and attempt to reduce parental conflict in the best interests of their children.
Clients are encouraged to be willing to negotiate with the other party from the moment they retain a lawyer. Family negotiation is usually conducted between the spouses’ legal counsel, who can articulate their clients needs in clear terms to help facilitate a swift agreement while ensuring their clients’ concerns are properly addressed. Negotiation can be the quickest and most cost-effective method of reaching a mutual agreement, however, successful negotiation requires the parties to work together and be open to compromise.
Successful negotiations can lead one party to extend a written offer to settle based terms they feel will be acceptable to the other party. If the offer to settle is accepted, it will form the basis for the terms of settlement. Sometimes, the terms of the offer to settle may not be accepted in whole but may lead to further discussions to reach terms that both parties can agree to.
In the event that the matter later goes to litigation and the judge finds that one party has refused a reasonable offer to settle, that party may have costs awarded against them.
Collaborative Family Law
As the name suggests, collaborative family law encourages the parties to cooperate and work together towards achieving a resolution without engaging the court. In effect, the collaborative family law process acts as a form of “enhanced negotiation”. Family lawyers trained in this method support their own client by guiding them through the negotiation and providing legal advice through a series of meetings designed to address the issues in the order that suits the parties’ needs and interests. Agendas are prepared for the meetings based on the input of both parties. Meetings include early gathering and sharing of information and identifying the interests, needs and expectations of each party. The parties may, with the assistance of counsel, engage the assistance of third-party experts such as tax experts, accountants, social workers, parenting specialists, business advisors or psychologists, when required, to work through any specific outstanding issues. Any required third parties will depend on the circumstances of the parties and their family’s needs.
The key to collaborative family law is that the participants agree to negotiate in good faith with a non-adversarial mindset and agree to provide full and frank financial disclosure. Unique to this form of dispute resolution, both clients and their counsel commit to each other that they will not commence court proceedings during negotiation discussions, and clients are aware that both lawyers must remove themselves from the case if litigation becomes necessary.
In family mediation, the parties retain a family mediator who acts as a neutral third party and helps facilitate the negotiation of any outstanding issues to reach a resolution. A mediator does not have any decision-making authority and does not impose a resolution on the parties. Rather, the family mediator oversees the negotiation process, working with both parties and their legal counsel in an unbiased manner to help reach a mutually agreeable outcome. Mediation allows parties to be innovative and create their own terms when attempting to reach a settlement. If terms are reached and agreed upon, they will be included in a Memorandum of Understanding and can subsequently be the basis of a separation agreement.
Mediation offers some benefits not present with traditional litigation, as it is a completely private process and customizable depending on the circumstances of the parties. Mediators can meet with both parties simultaneously or separately, which may be ideal in high-conflict situations. A further benefit to mediation is that the discussions are completely private, allowing the parties to keep the details of their dispute and the resolution out of public records. The parties can agree on terms that a court may not be able to award them, including tax-smart terms that may save the family money.
Family arbitration incorporates elements of other dispute resolution processes. In arbitration, the parties agree to hire a Family Arbitrator who must be qualified under the current legislation to hear evidence and submissions in a private setting. While the hearing process and evidence are kept private, the parties are bound by the outcome of the Arbitrator.
Prior to arbitration, parties are screened to ensure that they can participate in the hearing safely.The process is customizable, allowing the parties to agree on the Arbitrator, hearing date and time. This process can be ideal for those who cannot resolve their issues through other discrete methods but still want to keep their dispute private. Arbitration can be faster than litigation, given the backlog and scheduling delays in family courts.
While alternative dispute resolution processes offer many benefits, litigation may be the most appropriate, or only, option in some situations, particularly when the parties have already exhausted other attempts to resolve an issue. Certain circumstances may require court intervention in the event of a history of family violence, depletion of family assets, or risk of child abduction.
In litigation, each party represents their case to a judge, who renders a binding decision. Judges can make a variety of orders to compel a non-compliant party to do something and may sanction a party that is unnecessarily delaying or complicating a family law proceeding.
Court proceedings will be subject to the court’s schedule, therefore matters are often prolonged for months or years. However, family litigation requires a number of pre-trial conferences, during which time a judge may be able to help the parties finally come to a binding resolution without the need to proceed all the way to trial. The majority of family court decisions, including submissions and evidence, are public records, therefore litigation is the least private option for dispute resolution.
Contact Bortolussi Family Law in Vaughan for Effective and Compassionate Representation in All Forms of Family Dispute Resolution
At Bortolussi Family Law, our divorce lawyers diligently advocate for clients’ rights and protect their interests in any legal forum, including negotiation, mediation, arbitration, collaborative family law, and litigation. Whenever possible, we aim to help clients maintain a productive and collaborative dynamic with their former spouse while also positioning them for success. Our team has extensive experience and provides comprehensive advice on any family law issue, including property division, parental decision-making, parenting time, and child and spousal support. To discuss how we can assist you with your family law matter, please reach out to us online or by phone at 416-987-3300.