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Family Law Disputes

Holding off on Court_ Other Dispute Resolution Methods in Family Law

If you’ve never been involved in the family law system before, the experience can be frightening. You’re likely full of worry – about your children, about your house, about your finances – and you’re likely not familiar with the various procedures that can take place in order to reach an agreement. Worse still, if you’ve heard horror stories from friends or families, you might be petrified of what the family law process can cost.

Family law can be expensive, it’s true. However there are ways to handle and minimize those costs, and one of the primary ones is staying away from court. Some matters need to go through the court system, but as a general rule court proceedings are expensive, long-lasting, and cannot guarantee any party the results that they want.

Yet there are options besides court to resolve a family law dispute. While it may be hard to see the forest for the trees while you’re focusing on your dispute, an out-of-court resolution is often the simplest, quickest, and most affordable way to get a better result. Here is a quick glance at some of the options available.

Negotiation

When things turn acrimonious with your former partner, negotiation may seem like a pipe dream. With lawyers assisting though, it not only may be feasible, but it might be the quickest path towards resolving your dispute.

Lawyers can guide the negotiation process so that each side is able to balance the give and take in order to reach an agreement on certain points. You and your former partner may be able to agree on certain things yourselves, and lawyers (who are really expert negotiators) may be able to assist with some of the more difficult items. Ultimately, negotiation works best when both sides are willing to participate – otherwise, things will remain at a standstill. Also, ensure that you have all of the facts before entering negotiation so that you’re not agreeing to something that was not within your knowledge.

Mediation

The mediation process can be confusing if you have never been through it before. A mediator is not a judge, and may not even be a lawyer themselves. They are, however, trained experts at dispute resolution who are there to help you and your former partner find a middle ground while they themselves remain neutral. Every mediator takes a different approach – some might push the two sides harder to come to a resolution, and others may stay further back and only step in if needed.

Mediation allows for a negotiated settlement while usually keeping some distance between the parties. While everyone may start out in the same room (depending on the mediator), the time is spent with each party and their representatives in separate rooms, and the mediator going back and forth between the sides in order to help bridge a deal. If an agreement is reached, then the lawyers can prepare documentation that the parties sign off on as a settlement.

Just like negotiation, mediation is only an ideal solution if the parties are willing. There is no mandatory mediation in family law, and if there is an agreement to mediate then there is no requirement to solve everything that day. Yet even if a resolution does not happen on the spot, mediation can help give both sides a better idea of where the gaps are between the two positions.

Arbitration

Think of an arbitrator as a private judge. Arbitration is similar to mediation in that both sides are voluntarily coming to the table to share their positions, but instead of the option to walk away, both sides have agreed to let the arbitrator have the final say. Arbitration is a more formal process than mediation, where the arbitrator will formally hear all evidence presented and then make a ruling on the issues which then becomes legally binding.

Arbitrators do not have the full power of a court – they cannot grant a divorce, annul a marriage, or declare someone’s parental status. They can however issue rulings on property, child support, and on parenting time and decision-making responsibility (formerly access and custody). Arbitration proceedings can run similar to a court process, and may take several days, but are still often less expensive and less involved than full-out litigation.

The other major advantage of arbitration is the ability to select your arbitrator. While judges are inherently neutral, some may be more preferable than others given the nature of the case and the circumstances. Arbitration allows you to both agree to a ruler who has expertise in the area, and whom both parties and their lawyers trust will make the right decisions.

Parenting Coordination

If the major dispute involves how to parent children, a parenting coordinator is a neutral third-party that may be able to help. Parenting coordinators (“PC”s) are neutral third-parties with professional training in family law, and often in mental health issues as well. Their goal is ultimately to minimize conflict, and either help the two parents communicate better, or to be that bridge between parents who ultimately refuse to communicate.

A PC can help interpret and engage parenting plans, and can also help incorporate court orders and separation agreements when decisions about the children are involved. If the parents ultimately cannot agree, under an arbitration process a PC can make legally binding decisions regarding the children which the parents must follow.

If the parents are really struggling to communicate and it is impacting their ability to parent effectively, a PC and a parenting plan can help put better systems in place where everyone benefits.

Collaborative Family Law

While family law is often hostile, it doesn’t always need to be. If the parties are able to work together peacefully to make decisions, then collaborative family law may be the perfect solution.

In collaborative family law, the parties work together along with lawyers, mediators, third-party experts etc. in order to reach a resolution between themselves about the end of their relationship, division of property, etc. The difference is that the former partners retain control of the process, and they’re the ones working together to make decisions.

The parties have to agree ahead of the collaborative process not to go to court, or that they will not threaten each other to go to court. If the matter does need to proceed to court later, the process is an entirely different one, and they will need different lawyers to represent their interests (although the previous collaborative discussions are not admissible in court). The goal throughout the collaborative process is that the parties remain respectful of one another, listen to each other, remain patient and understanding through the process, and ultimately walk away with a more agreeable and cost-effective solution.

Final Thoughts

There is no one magical answer for a family law resolution. Just like every family is different, every break-up is, too, and the answer is not a one-size-fits-all solution. Some matters may need to be decided by a judge, but a simple dispute should not automatically result in an expensive court process.

We’ve worked with countless families throughout the Cambridge, Kitchener, and Waterloo region to find effective solutions to their family law issues, including many of the methods outlined above. Contact us today to learn more about our services.