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What is Alternative Dispute Resolution?

Posted on 16 Oct'12 in Family Law

Alternative Dispute Resolution (ADR) is an umbrella term incorporating mediation, arbitration and mediation/arbitration. Alternative Dispute Resolution is just that, an alternative to going to court or in legal terms, litigation.

ADR can be a desirable option for a number of reasons: • It is less adversarial than appearing in court • Parties can be more open and communicative with each other • There is often less hostility amongst parties because of their combined desire to achieve a satisfactory resolution • Parties have more control to steer the matter in ways that work for them and according to their own timelines • It if often much less costly than going to court • It is usually less emotionally taxing on parties and their families, especially the children

ADR does not work for all parties involved in family law proceedings. Generally, ADR is a desirable option for parties who are able to communicate effectively, who are open and willing to come to the table to discuss contested issues and who are motivated to work towards a negotiated settlement. ADR is not a good option where there has been a history of violence in the relationship, where one party feels threatened in the presence of the other. Feelings of intimidation need not be in relation to speaking with the other party but can be ignited simply by eye contact or body gestures.

Mediation
Mediation is a voluntary process whereby either party is free to withdraw from the process at any time. It is generally informal and often occurs in a boardroom or meeting space. The parties agree to hire a neutral and independent third party mediator to assist them in negotiating a settlement. This party can be a lawyer, an expert or professional. The role of the mediator is to act as a non-biased party and aid the parties in identifying the issues and working with them to resolve them. The discussions that take place in mediation are completely confidential and without prejudice. What this means is that the parties and the mediator are restricted from bringing up anything discussed in the mediation in court.

The outcome of mediation is non-binding which means that the parties are not obligated to abide by it. Where a settlement is reached, the parties will draw up a Minutes of Settlement and then sign and have it witnessed. Thereafter, the Minutes are typically incorporated into a court order on a consent basis.

Aribitration
Arbitration is very similar to mediation in that it is much less adversarial than appearing in court. Where arbitration differs, is that the arbitrator has the power to make a final decision that becomes binding on the parties. What this means is that unlike in mediation where parties are free to abandon the mediation, in arbitration once a decision has been made by the arbitrator, the parties are bound by it. In this way, the arbitrator has powers similar to that of a judge.

Mediation/Arbitration
Mediation/arbitration is a blend of the two processes. It begins with mediation and the parties are encouraged to work towards a negotiated settlement. Where mediation becomes unsuccessful however, either party can request that the parties begin arbitration. At this point, the second stage of arbitration is commenced and the mediator/arbitrator then has the power to make a binding decision on the parties. The benefit of mediation/arbitration is that it allows parties to attempt to resolve issues on their own, but provides them with the comfort that even where communication breaks down the mediator/arbitrator is still able to achieve settlement through a binding order.

For more information on the above, contact our Law Firm, Mann Law at (905) 565-5770 or by email to: staff@mannlaw.ca

Disclaimer: The above article is not a legal opinion as every case is different and is only for general awareness. Please contact us for specific questions and legal advise.

Contact Mann Law

Disclaimer: The above article is not a legal opinion as every case is different and is only for general awareness. Please contact us for specific questions and legal advise.