Alternate Dispute Resolution & Family Law - What You Need To Know
Family law lends itself well to resolution of disputes by mediation/arbitration (med/arb). The court system has recognized this fact, and has adapted itself to making the system similar to a med/arb model. Unlike med/arb, litigation is confrontational by its nature. In litigation there is little room for compromise. At the end there is a winner and a loser, and the loser often has to pay a significant chunk of the winner's legal costs. That could run to thousands, if not, tens of thousands of dollars. Those are monies that you could better use for your family, including sending your children to college or university.
The family law court system has built in a number of face to face meetings with judges, who attempt to assist the parties to settle. Unfortunately, the judicial system is very costly. Going to court is expensive if you hire a lawyer, and litigating in family law without experienced family law lawyers is very risky. The steps involved are:
- pleadings (setting out your case and defending the case set out by the other side);
- case conference (before a judge);
- motions for temporary relief, such as temporary custody, support, etc);
- settlement conference (before a judge);
- trial management conference (before a judge); and
- an exit pre-trial and a trial (both before a judge)
Med/arb is more efficient and moves more quickly toward getting you a final result. The med/arb agreement often sets specific timelines for completion of the mediation process, after which, if the matter isn't resolved, the arbitration begins and then concludes - often within weeks.
Advantages of Mediation/Arbitration
In med/arb you enjoy a number of advantages over litigation:
- You know who will be assisting you in achieving a settlement, and that your mediator is very experienced in family law. If the matter doesn't settle, you also have the confidence of knowing who your arbitrator will be.
- You will have get a faster result than you would through the litigation process. The matter may be settled within weeks, and if not settled, you will complete the arbitration within a month or two.
- The court system, particularly in York Region, Ontario is backlogged with cases as a result of too few judges, and a rapidly growing population.
- As a result, the cost savings with med/arb as compared to litigation are potentially enormous.
- You will enjoy complete confidentiality of your personal affairs from the public. The court system is public and the disclosure of documents you give of all of your financial affairs is in a public file. In med/arb all of that information remains in a sealed file with the mediator/arbitrator.
- The cost of the mediator is shared equally, unless both of you agree otherwise.
The advantages of med/arb over litigation are many, and the current trend in family law is moving away from "winner take all" in the court system toward alternate dispute resolution.