Alternative Dispute Resolution (“ADR”) is the collective acronym for all dispute resolution processes, except litigation.
All disputes begin with a disagreement between two or more people, corporations, countries, etc. However, there are many ways for the dispute to resolve or move towards resolution. Picture a continuum where talking an issue over and fixing it is at one end and a Trial Judgment is at the other.
As you move across the continuum you lose control of your dispute and your chance to resolve the dispute in a way that meets your needs and interests. As you move across the continuum you have multiple opportunities to reach resolution without a Trial.
The most common processes your lawyer should recommend are Mediation and Arbitration.
Mediation is a problem-solving process. It is facilitated by a neutral, objective third party called the “Mediator”. The role of the Mediator is to manage the negotiation between the parties. In the family law setting the parties are traditionally two spouses or two parents, although other parties may be involved. The Mediator controls the process; the parties control the content. The parties and the Mediator have a shared goal – to reach agreement that satisfies the needs of everyone involved.
Speak to your lawyer about whether Mediation would work for you and what potential costs could be. Your lawyer can assist you in choosing a Mediator who:
• Allows each party to contribute to the Agenda that sets out what matters will be discussed – defining the problem or issue;
• Provides each party an opportunity to contribute their own content to the issue and their own personal and exclusive version of events;
• assists the parties in mutualizing or finding areas of agreement;
• Helps the parties maintain a future focus
Arbitration is also facilitated by a neutral, objective third party referred to as the “Arbitrator”. It differs from mediation in many respects, including that it is a more formal process and is governed by the Arbitration Act, R.S.A. 2000, c. A-43.
The Arbitrator controls the process, controls how the information (evidence) gets before the Arbitrator and makes a decision after hearing all the evidence. As a general rule, decisions are final and binding and can only be appealed on two grounds:
1. Misdirection on a question of law;
2. Failure to observe “due process” or rules of “natural justice”.
The Arbitrator may determine the manner in which evidence is to be determined, the time, date and place of arbitration taking into consideration the parties’ convenience and other circumstances. As a party to an Arbitration, you are subject to the directions of the Arbitrator, including directions to be examined on oath or affirmation with respect to the matter(s) in dispute and/or produce records or documents in your possession or power.
The Arbitrator is required to follow the Rules of Natural Justice which mandate that each party is given an opportunity to present a case and to respond to the other party’s case.
Speak to your lawyer about whether Arbitration would work for you. Arbitrators are chosen jointly by the parties.
The Partners and Senior Counsel at Foster LLP are trained in Mediation and Arbitration and available to assist you with your family law disputes.