Canada: "Appropriate" Dispute Resolution

Last Updated: November 7 2017
Article by Carolyn Lloyd

We've all heard of ADR or "Alternative Dispute Resolution". I'm proposing we re-consider the use of the word "alternative" regarding dispute resolution. It tends to invalidate the chosen process as though it's not as legitimate as the real choice, which everyone knows is court. Any method of dispute resolution that is successful, or partially successful, is as valid as any other. What needs to be determined is what method of dispute resolution is most suited to your family dispute.

The ''A" in ADR should stand for the word "Appropriate". Appropriate Dispute Resolution is the best approach to your case, and you may not know what your options are or how to choose what's right for you.

Generally, the best solution to any problem is one that the parties themselves created. This is one of the principles of effective dispute resolution. Mediation is a process that allows a neutral third party to help facilitate a resolution that satisfies the parties' needs. The parties play a more active role than in court where the resolution to their dispute is imposed on them by a judge. Mediation for family law disputes is generally closed, rather than open, meaning that nothing said in closed mediation may be used in court. In the collaborative family law process, the parties and their lawyers make a commitment not to bring the matter before a judge, and therefore creative resolutions must be achieved with the full participation of the parties. Negotiation is a process that is voluntary and does not involve a party who facilitates the resolution or imposes a resolution - typically lawyers negotiate on behalf of their clients. Arbitration is the dispute resolution most similar to a trial, but it is private with a third party, chosen by the parties, who acts as a judge and imposes a resolution that is binding. There are other types of dispute resolution that are evolving constantly and it's important to keep an open mind about the many processes available, such as early neutral evaluation, peacemaking and sentencing circles, case evaluation and neutral fact­ finding.

In family law disputes, especially where individuals will need to have an ongoing relationship as parents, mediation and the collaborative method foster a problem-solving mentality rather than an adversarial one, and the process of finding a resolution will be far more constructive than a trial.

In Australia, the law requires separating families who have a dispute about a child or children to make a genuine effort to try to resolve their issues through family dispute resolution (FDR) before filing an application for parenting orders in Court. This includes those seeking changes to an existing parenting order. It is compulsory; however, there are a few exceptions to this requirement, such as cases involving family violence, child abuse or urgency. Clearly, the court in Australia values the use of a family dispute resolution approach, that includes mediation, before resorting to the traditional adversarial process. The FDR practitioners may suggest other options, such as counselling for parents whose communication needs improvement. FDR is confidential and cannot be used as evidence in court.

In Ontario, there is a Mandatory Mediation Program for civil litigation and estate matters in Toronto, Ottawa and Windsor. There are similar programs in British Columbia and Saskatchewan. Family law cases, however, are exempt from mandatory mediation. Purists would argue that mediation should never be "mandatory", however the sessions do not require a solution, but attendance is required. Once the parties delve into the issues, the parties are willing and the process is no longer mandatory. Voluntary mediation through courts in the U.S. has been found to be underutilized, likely due to the adversarial mindset of litigants.

There are also on-site, government-funded mediation services in all Family Courts in Ontario. Arrangements may also be made for off-site mediation services. Mediation is promoted at all stages of family law disputes, whenever appropriate, litigants are made aware of other dispute resolution methods by judges, lawyers and local resources and programs for families facing separation and/or divorce. Legal Aid funding is available in Ontario for mediation services for parenting issues and child support. The government recognizes that successful mediation is also far more cost-effective than litigation, amongst other long-lasting benefits of resolving future dispute without court intervention.

There are also many private mediators in London, Ontario, who will assist with your family law dispute, including mediators who are also experienced family law lawyers, as well as skilled social workers who mediate parenting issues. Mediation is sometimes lawyer-assisted, meaning both parties have lawyers present to help advocate for them in the mediation process. The role of the lawyers in a mediation is to ensure that their clients know their legal rights, and assist with the creative and constructive mediation process. Parties entering any form of mediation should have one primary goal in mind - conflict resolution.

Originally, mediation was thought to require the parties to remain in contact in the same room for most or all of the mediation session. The innovation of separating the parties after (or sometimes before) a joint session and conducting the balance of the process with the parties in separate rooms, while in the same area, was a major development that dramatically improved mediation's success rate. This is often called "shuttle mediation" and it is very effective, in my experience.

Mediators and other conflict resolution specialists earn a well-deserved sense of satisfaction and achievement from the role that they play in people's lives. Solutions and an ongoing commitment to return to a dispute resolution process, rather than litigation, become a part of people's mentality.

Not only is mediation a useful tool for resolving family law disputes, it can be applied to personal injury, estate, labour and employment, and commercial disputes, as well as political and international conflicts. Dispute resolution, in its many forms, may work in small-scale or large-scale issues.

It's important to keep an open mind about the new developments and strategies for dispute resolution. There are talented individuals working on new ways to resolve the most contentious and adversarial disputes, without submitting them to the public forum of court. If every party to a dispute keeps an open mind about "Appropriate Dispute Resolution", disputes will be resolved faster and privately, with more creativity than in court, and with the engagement and participation of all parties.

www.lerners.ca

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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