Negotiation, Mediation or Arbitration in Family Law: Which is Best?
- 4 August 2017
When parties separate and commence the divorce process or when they decide to settle support or parenting matters, many times they advise their family lawyer that they do not want to end up in court or have their matter decided by a judge. Instead, the parties will look to his or her lawyer for options to keep the matters in the boardroom and out of the courtroom, known as Alternative Dispute Resolution. Three options that a family law client may be given for Alternative Dispute Resolution are Negotiation, Mediation or Arbitration.
WHAT IS NEGOTIATION?
During a divorce negotiation, each party will communicate directly with each other and make their own decisions. In some cases this can be done without the assistance of a family lawyer or a third party, such as a mediator or an arbitrator, discussed below. There are two main forms of negotiation:
- Parties and /or their counsel may focus on what is his or her best positon or what is in their best interest. They care little for the position of the other party and look at matters as having a win-lose result.
- Negotiation can also be interest-based, during which parties look for each other’s underlying interests and work toward win-win resolution.
In family law cases, we see many parties relying on the interest based negotiation as while they may be separating or divorcing, the parties will have the common interest of their children or family at heart. Once parties begin saying what the underlying reason is for wanting an asset or parenting time, it may be easier for the other party to accept. Also, parties unknowingly may have complimentary interests even though they have very different positions.
The process of a negotiation is usually held in what family law lawyers will call a “four-way meeting” or a “settlement meeting”. The name says it all—the person and his or her lawyer will sit at a table with the counsel and his or her client and try and settle the dispute.
WHAT IS MEDIATION?
Mediation, as used in during divorce proceedings, is a way of resolving disputes involving two or more parties. Typically, an impartial third party, the mediator, assists the parties to negotiate a settlement. In family law matters, the parties and their counsel will use the same techniques seen in interest based negotiation, but the mediator is there to assist the parties with determining their interests, looking for options, and coming to resolution.
Commonly, the mediator will review the disclosure for the Matrimonial property claim, look at parenting plans, and discuss with the parties their needs for support. The mediator is not there to help a party argue his or her case, but help with the process.
At the end of the successful, mediation, the mediator will often write a memorandum of understanding of the terms of the divorce, property, or parenting settlement. This document is then what the lawyers for the two clients will use to draft the Settlement Agreement.
However, mediation may or may not result in a resolution of the family law dispute. In an interest-based mediation process, a the mediator is there to facilitate a discussion between the parties which allows them to make their own decisions and find their own solutions in relation to issues and conflict but they are not a judge and cannot tell what the parties what they must do.
Parties can also choose to start a matter as a mediation and then have that mediator switch roles to an arbitrator, if both parties and their lawyers agree.
WHAT IS ARBITRATION?
In arbitration, a neutral third party, jointly selected between the parties, receives evidence and arguments of the parties. The arbitrator analyzes the evidence, makes fact findings, applies the facts to the relevant contract or legislation and writes a decision called an Award. Simply, the arbitrator is a person who the parties to a family law dispute hire to be their judge.
The arbitrator’s decision can be influenced by previous cases in the courts but it does not need to follow the same rules of evidence and procedure that a Justice of the Court of Queen’s Bench or Provincial Court must abide. The award is final and binding subject to limited rights of appeal. The arbitrator’s award will then be taken by the lawyers for the two parties to the divorce or separation and the terms will be used to draft a Court Order, Divorce Judgment or Settlement Agreement.
Which one is for me?
All three options are a successful way for the party to stay out of a court room. The options a person must weigh are whether they need the assistance of a third party, if they are worried about what should occur if they cannot agree, and the cost of the processes. Mediators and arbitrators add an additional cost to the process.
If you have decided that you do not want to go to court and want to explore one of the Alternative Dispute Resolution options, contact a lawyer at RCMV LLP.
RCMV LLP has a team of family lawyers in Calgary that are skilled negotiators and are experienced interest-based mediators. If you’re unsure on the best way to proceed for your particular separation or divorce, contact the RCMV Family Law office today for more information. If you would like to start with an experienced mediator, you can review profiles for, and Alison Chickloski, Debra Price, Diana Richmond and Nicholas Van Duyvenbode. For arbitration proceedings, Debra and Alison are also certified and experienced in Arbitration.