Adults have a lot of decisions to make when they leave a serious relationship. Sometimes these are small decisions, about who can keep the dishes, the books or the Kenny G albums, but more often they’re big decisions about things like where the children should mostly live, how the children’s time will be divided, who should pay how much in support and whether the family home should be kept or sold. Decisions like these, and a few more besides, all fall under the umbrella of family law.
People are often able to resolve these decisions on their own, but when they can’t, they have a problem, and walking away from a difficult family law problem is rarely a good idea.
dispute resolution options
There are five ways to resolve disagreements about family law decisions. Negotiation is a bargaining process in which the people involved, the parties, try to work out a solution to their disagreement with or without the help of lawyers. Collaborative negotiation is a special kind of negotiation in which the parties have lawyers and everyone works together in a cooperative way to reach an agreement. Mediation is a bargaining process in which the parties try to work out a solution with the help of an independent, neutral person, a mediator, who helps them talk to each other and identify potential solutions. Litigation is an adversarial process in which the parties ask an independent, neutral person, a judge, to make a decision for them. Arbitration is a lot like litigation, except that the neutral person who makes decisions is called an arbitrator, the process is private and confidential, the parties get to pick their arbitrator, and the process is usually much faster and much less expensive.
You may have also heard of people using something called mediation-arbitration or med-arb. Just like it sounds, mediation-arbitration uses a combination of mediation and arbitration to resolve disagreements. First, the parties try to work out a solution through mediation. But if one or more issues can’t be resolved through mediation, those issues will be resolved through arbitration.
Parenting coordination is another way of resolving disagreements but is limited to disagreements about parenting issues. Parenting coordination is reserved for parents who constantly find themselves fighting about parenting issues and should only be used when there is a final order, final award or a final agreement in place. Parenting coordinators are independent, neutral people who try to resolve parenting issues by helping the parents reach an agreement, in a process a lot like mediation, but if agreement cannot be reached, the parenting coordinator may make a decision resolving the issue, in a process a lot like arbitration. Parenting coordinators are usually hired for lengthy terms of 6 to 24 months.
John-Paul Boyd took his training as a mediator in 2005, as a parenting coordinator in 2006 and 2007, as an arbitrator in 2011 and as a collaborative practitioner in 2012.
comparing dispute resolution processes
Not every dispute resolution process is equal, or equally-well suited to resolving a particular problem. Where simple negotiation won’t work, collaborative negotiation is probably the best possible way to resolve family law problems. Parenting coordination works really well too, but it’s only useful for parents who already have a final order, final award or final agreement. Mediation, arbitration and litigation have their place too; arbitration and litigation are most often used when the disagreements between the parties, and the differences between their positions, are significant. Mediation is used when, despite the conflict between the parties, settlement is still possible.
A study prepared by the Canadian Research Institute for Law and the Family in 2018 showed big differences in family law lawyers’ views of mediation, arbitration and litigation. Although almost all of the lawyers surveyed by the research institute used litigation to resolve family law disputes, almost all of them preferred not to litigate. The lawyers said that:
litigation costs more than twice as much to resolve family law disputes than mediation and arbitration, even high-conflict disputes;
the results they achieve through mediation and arbitration are much more likely to be in the interests of their clients and in the interests of their clients’ children than the results they achieve through litigation;
their clients are more satisfied with the results they achieve through mediation and arbitration than the results they achieve through litigation;
resolving disputes through mediation and arbitration makes it easier for the parties to cooperate with each other in the future than when family law disputes are resolved through litigation; and,
litigation takes more than twice as long to wrap up a family law dispute than mediation and arbitration.
Almost four-fifths of the family law lawyers surveyed said that mediation is usually cost-effective for their clients and more than three-fifths said that arbitration is usually cost-effective for their clients; on the other hand, 87.1% of these lawyers said that litigation is not cost-effective for their clients.
Although litigation has its role — you may have no choice but to go to court if someone is making threats to destroy property, hurt you or leave the country with the children — it’s not necessarily the best option. If you’re concerned about the length of time it will take to get in front of a judge and the amount of money litigation will cost, you owe it to yourself and to your children to think about resolving your family law dispute another way.
For information about family law and the processes available to resolve family law disputes, read John-Paul’s public legal education resource JP Boyd on Family Law if you live in British Columbia, either online or in any public or courthouse library. (If you go to the library, make sure that you’re reading the 2019 edition.) Although the information in the wikibook about divorce, child support and the Divorce Act applies everywhere in Canada, if you live in Alberta you should also go to the website of the Centre for Public Legal Education Alberta. CPLEA has a great collection of resources about family law and family violence written just for Albertans.
John-Paul Boyd Arbitration Chambers
We provide mediation, arbitration, mediation-arbitration and parenting coordination services throughout Alberta and British Columbia. Interested in resolving your family law problem without going to court? Click the how to hire us button below to find out more.