There are alternatives to traditional litigation for resolving legal disputes. Possible methods include negotiation (with or without legal counsel), mediation and arbitration.

Negotiation:

Many family law files begin in the negotiation phase. Often, the parties themselves will attempt to resolve all outstanding issues between them. In many cases, the parties’ negotiations will hit a roadblock, which is usually when lawyers are retained to assist the parties with their negotiations. Negotiations can take place informally through letters and phone calls between counsel or between a lawyer and a self-represented party. Sometimes, minor issues can be resolved by letter or phone call, whereas major issues may require a 4-way meeting involving lawyers and parties. These meetings are typically held at one of the lawyer’s offices. If a case is still unresolved, then both parties may agree to put the remaining issues before a certified mediator.

Mediation:

Family law mediation is a dispute-resolution process that takes place before, and with the assistance of, a certified, professional mediator. The mediator’s job is to listen to the parties and understand their respective positions, educate and advise the parties, and guide them to a voluntary and mutual agreement. The mediator’s role is that of a facilitator; he or she cannot impose an agreement, decide an issue, or provide legal advice. The purpose of mediation is to resolve the key legal issues outstanding on separation, not to help the parties reconcile. Mediators have a wide array of skills and expertise, and will employ a variety of techniques to settle the dispute. The objective of mediation is for the parties to sign a binding agreement that will guide their future relationship, either at the conclusion of the mediation or in subsequent exchanges of draft agreements.

It is possible that some issues may be resolved at mediation, leaving other issues outstanding. If the parties have agreed to a mediation-arbitration (“med-arb”) process, then the unresolved issues will proceed to arbitration. If no med-arb process was agreed to, the parties can agree to refer the outstanding issues to arbitration, or one party may decide to commence a family law application to have the issue litigated before the court. If some issues were formally agreed to in mediation, then neither party can put those issues before a court.

Mediation is more likely to be appropriate and successful when the conditions listed below are present:

• emotional readiness;

• equality of bargaining power;

• patience and good listening;

• reasonability and flexibility;

• motivation to settle;

• some degree of trust;

• complexity of legal issues is minimal; and/or

• certainty is valued.

Mediation is not appropriate and less likely to be successful where the following are present:

• power imbalance;

• history of physical/emotional abuse;

• inflexibility;

• not motivated/ready to settle; and/or

• lack of trust between the parties and of the process.

Arbitration:

Occasionally, unresolved family law files will proceed to resolution by arbitration, where both parties agree to arbitration. Arbitration will usually occur after mediation has failed on some or all of the issues. Many separation agreements also include a clause that any claims arising from the agreement have to be resolved by mediation-arbitration.

At arbitration, the parties agree to appoint an arbitrator to review the evidence and arguments of the parties and render a binding decision, called an award. The process is similar to litigation except that arbitration is less formal and more flexible. In arbitration, the parties can decide what steps they want to utilize to discover the evidence before the case is ultimately decided by the arbitrator. The parties can also set their own hearing dates and have the matter decided in much less time than could occur through the courts. The process is also private, as opposed to court, which is public.

The arbitrator’s role is very similar to a judge in that the arbitrator can decide questions of law or fact, make awards with respect to property, appoint experts, hear from witnesses, and award costs. The parties are usually represented by their legal counsel.

The right to appeal an arbitrator’s award depends on the terms of the arbitration agreement, and may be limited to questions of law. An award can also be set aside on grounds such as fraud, unfair treatment, and bias, as examples.

The lawyers at Ambrosino Law Group are experienced in all aspects of dispute resolution, and can help you navigate the resolution of your dispute using whatever method will be most effective in your circumstances. Our lawyers have negotiated, mediated and arbitrated numerous successful outcomes for our clients.

Valois Ambrosino is a certified family law mediator and arbitrator who can be retained to mediate or arbitrate family law disputes. Please contact us to find out how we can help you resolve your dispute.