When adults leave a serious relationship, they have a lot of decisions to make. Sometimes these are small decisions, about who can keep the dishes or the books, but more often they’re big decisions about things like where the children should mostly live, how their 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. Walking away from a difficult family law decision 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 the dispute 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 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 identify interests and potential areas of compromise. 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, and the process is usually much faster and much less expensive.
You may have heard of people using something called med-arb to resolve disagreements. Med-arb is a combination of mediation and arbitration in which the parties use an independent, neutral person to help them reach a solution through mediation, but agree that that the neutral person will be able to make a decision through arbitration on any issues they’re not able to resolve by agreement.
Parenting coordination is a way of handling disagreements about parenting issues, but should only be used when there is a final order or a final agreement on parenting in place. Parenting coordinators are independent, neutral people who try to resolve these issues by helping the parents reach an agreement, in a process a lot like mediation, but if agreement cannot be reached, the parenting coordinator can make a decision resolving the issue, in a process a lot like arbitration.
comparing dispute resolution processes
Not every dispute resolution process is equal. 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 when the parties already have a final order or final agreement. Mediation, arbitration and litigation have their place too; arbitration and litigation are most often used when the disagreement between the parties and the differences between their positions are significant.
However, studies conducted by the Canadian Research Institute for Law and the Family for the Canadian Forum on Civil Justice show 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. These lawyers said that:
litigation costs more than mediation and arbitration to resolve family law disputes, 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 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 their clients to cooperate with each other in the future than when disputes are resolved through litigation; and,
litigation takes more than twice as long to wrap up a family law dispute than mediation and arbitration, and can cost up to twice as much.
Almost four-fifths of the family law lawyers surveyed agreed that mediation is usually cost-effective for their clients and more than three-fifths agreed 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.
Although litigation has its role — you may have no choice but to go to court if someone is making threats to destroy property 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 through John-Paul Boyd’s wikibook, 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 2017 edition.) Although the information in the wikibook about divorce 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, med-arb and parenting coordination services throughout Alberta and British Columbia. Want to resolve your family law problem through a process other than litigation? Call us. Click the how to hire us button below to find out more.