Different Forms of ADR: Mediation, Arbitration and Collaborative Divorce

ADR processes are a popular and efficient way to resolve some Family Law disputes without resorting to adversarial litigation. They involve settling issues outside of court which makes these processes expedient and cost effective. Various ADR mechanisms are similar to each other but differ in their unique features and processes. The three most common forms of ADR are:

  1. Mediation

The mediation process involves a neutral third party, called a mediator, who helps couples resolve their legal disputes through negotiation. It is an informal process whose purpose is to identify common ground between the parties and resolve issues, which essentially narrows down the number of contentious issues between the parties.

If mediation is unsuccessful, there is no bar on proceeding with litigation. Parties are free to avail traditional litigation. In Ontario, mediation can only be pursued with respect to certain matters, which include child support, access and custody, and equalization of net family property.

  1. Arbitration

While mediation is voluntary, arbitration is more akin to a formal court hearing. The hearing involves an impartial arbitrator who listens to both sides of the story and makes a ruling that is binding on the parties. The process is less rigid than a formal court hearing but still requires certain protocols to be followed with respect to witnesses’ testimony and the submission of evidence and documents. There are limits to the matters that can be referred to arbitration. It can cover spousal or child support, custody and access to children and division of property. It does not include divorce, marriage annulments and certain administrative changes to official family status and declarations of parentage. Arbitration awards are governed by legislature and can be enforced through a simplified procedure.

  1. Collaborative Divorce

Collaborative Divorce is an out of court process where parties mutually agree to avoid litigation. It allows for a more amicable divorce which is faster and cheaper. To go through a Collaborative Divorce, each party signs a contract prior to the start of the negotiations which outlines the principles of the Collaborative Divorce. As part of the contract, the parties also agree to provide full financial disclosure to facilitate the negotiation process. Collaborative lawyers are specifically trained in collaborative law. When parties sign up for a Collaborative Divorce, they agree not to take the matter to court. As a result, if the parties fail to reach a settlement, they will have to new hire lawyers to go to court. The process is designed to foster cooperation and disclosure and takes into account the best interest of children.