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.
dispute resolution options
There are five ways to resolve disagreements about family law decisions, six if you count walking away. Negotiation is a bargaining process where 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 bargaining process where the parties have lawyers, and everyone works together to reach an agreement. Mediation is a bargaining process where the parties try to work out a solution with the help of a neutral third-party, a mediator, who helps them identify interests and potential areas of compromise. Litigation is an adversarial process where the parties ask a neutral third-party, a judge, to make a decision for them. Arbitration is a lot like litigation, except that the neutral third-party is called an arbitrator, and the process is usually faster and less expensive.
You may also 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 a neutral third-party to help them reach a solution through mediation, but agree that that the third-party will be able to make a decision through arbitration on any issues they’re not able to resolve by agreement.
(Decisions made by a judge are called orders; decisions made by an arbitrator are called awards. Where people are able reach a solution on their own, the terms of their settlement can be written down as a formal contract, such as a parenting agreement, a support agreement or, more commonly, a separation agreement. A settlement can also be made into a special order of the court, called a consent order because everyone agrees that the judge should make the order.)
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 neutral third-parties who try to resolve these problems by helping the parties 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, research conducted by the Canadian Research Institute for Law and the Family for the Canadian Forum on Civil Justice showed big variations in family law lawyers’ views of mediation, arbitration and litigation. Although most of the lawyers surveyed used litigation to resolve family law disputes, almost all of them preferred not to litigate. Lawyers said that:
litigation costs more than mediation and arbitration, even in high-conflict disputes;
the results achieved through mediation and arbitration were much more likely to be in the interests of their clients and their clients’ children than the results achieved through litigation;
their clients are more satisfied with the results achieved through mediation and arbitration than through litigation;
resolving disputes through mediation and arbitration makes it easier for their clients to cooperate with each other in the future than 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 strongly agreed or agreed that mediation is usually cost-effective for their clients and more than three-fifths strongly agreed or agreed that arbitration is usually cost-effective; one the other hand, 87.1% of lawyers disagreed or strongly disagreed that litigation is cost-effective.
Although litigation has its place — 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, or if family violence is an issue — it’s not necessarily the best option. If you’re concerned about the length of time it will take to get into court and the amount of money litigation will cost, you owe it to yourself and to your children to think about another option.
For information about family law and the processes available to resolve family law disputes, browse through John-Paul Boyd’s wikibook, JP Boyd on Family Law, if you live in British Columbia, either online or in any public library. (If you go to the library, make sure that you’re reading the 2017 edition.) Although the information in the wikibook about 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.