It is not unusual for conflicting emotions to cloud even the most reasonable person’s judgment. During a divorce, you may be feeling frustrated, angry, betrayed or sad. These feelings can bubble to the surface, negatively impacting the decisions you make.
You may be tempted to punish your former partner after a breakup and insist on taking your dispute to court, but is that really in your best interest?
Certainly, there are times when going to trial is the best and only option. For example, if your partner is unwilling to negotiate or refusing to act in good faith. Complex situations involving business ownership or complicated financial matters may be best adjudicated by a family court judge. If there is a history of family violence or abuse, court may also be the preferred route.
However, it is not essential to go to trial to settle common family law disputes. Negotiation, which requires give and take on both sides, is often the most efficient, not to mention cost-effective, path to take.
Alternative dispute resolution (ADR) has proven to be an extremely useful tool in a divorce. ADR is a voluntary process that uses a neutral third party to help couples reach a settlement. Options available include mediation, collaborative family law or arbitration.
At Demas Schaefer Family Lawyers, we are experienced in family law litigation and divorce and can offer constructive solutions no matter your situation.
Beginning the divorce process
When you decide to end your marriage, you are required to file a Statement of Claim for Divorce in court. You or your former partner has to live in the province in which you are divorcing for at least one year before this filing.
Requirements under the recently amended Divorce Act state that you must attempt to solve your family law issues by using family dispute resolution before going to court.
“Legal advisers now have a duty to encourage you – as their client – to try to solve issues through a family dispute resolution process, unless it would be clearly inappropriate to do so,” the Department of Justice (DoJ) states.
According to the DoJ, “There are many advantages of solving issues by agreement instead of having a judge make decisions for you.” They include:
- better understanding of the needs of your children;
- family dispute resolution is typically less expensive and much faster than going to court;
- it can be beneficial for children to see their parents cooperating; and
- some family dispute resolution processes may improve the communication abilities of a divorcing couple.
“Under the new Divorce Act, parents have a duty to protect their children from conflict relating to parenting and support issues,” the government further states.
Choosing the right option
In an amicable divorce, you may be able to negotiate with your ex to reach an agreement without the help of a legal advisor. However, even if you and your former spouse can reach a compromise on all your issues, the Department of Justice suggests it may still be beneficial to talk to a family lawyer before putting anything in writing.
Family law issues can be complex, and the decisions you make today could have an impact years down the line. A lawyer can discuss your options and explain:
- your legal rights and obligations and those of others;
- how legal issues may be linked;
- how the court system works;
- how quickly issues are likely to be resolved through court and the family dispute resolution processes; and
- the advantages or disadvantages of having an agreement or court order.
Consider the time and cost
The first thing to consider is the time and cost of going to court. Prior to the pandemic, the Court of King’s Bench had more availability to deal with family law issues. However, in recent years, changes to the system have resulted in more delays in accessing Family Law Chambers.
Arbitration has similarities to litigation in court, except that you have more control and you can potentially resolve your matter in a more timely fashion.
There are times when a couple may start out negotiating with each other to form the basis of an agreement, but they don’t see eye-to-eye on certain issues. That may be a good time to try mediation. Mediation, just like arbitration, is voluntary. You cannot be forced to participate in either process.
A mediator is a neutral third party chosen by mutual agreement who helps divorcing couples negotiate a settlement. A mediator can assist the two parties in resolving issues such as property division, parenting plans and child support.
The mediator does not have the final say in a dispute. If an agreement is reached, it is non-binding, and the parties can choose whether to follow it.
If mediation fails, the parties can move to arbitration or court, where any decision reached will be binding. Arbitration is similar to court, with the arbitrator making rulings like a judge. The difference is parties involved get to choose who is making the decisions. If you go to court, you have no say in the judge who will hear your case.
How arbitration works
Arbitration provides flexibility and the opportunity to settle your divorce quicker because you don’t have to wait for a court date.
Arbitrations are held in informal settings and are generally considered to be private, unlike court hearings, which are open to the public. As well, there is no public record of an arbitration hearing.
You also have greater control over the process. You and your former partner can choose the arbitrator, which can be a big advantage because you can select someone who may have more experience adjudicating the issues that are important to you than some judges might have.
It should be noted that unlike mediation, arbitration is not a collaborative exercise. During the process, the arbitrator gives both sides the chance to present evidence. Once you have stated your case, the arbitrator will have the final say.
Any decision made by the adjudicator must be consistent with the Family Law Act. It is also important to note that a ruling can be appealed but only on a limited basis.
Because arbitration is more informal than going to trial, it typically results in a less adversarial environment. This can help foster a more cooperative and positive relationship, which could be beneficial as you move forward into a new family dynamic. It may also reduce the stress that can accompany an acrimonious court trial.
What’s the right choice for you?
When a relationship ends, there can be many issues to decide and manage. The team at Demas Schaefer can offer sound, practical advice to help you achieve your goals and alleviate your anxiety. Our lawyers are experienced in alternative dispute resolution and arbitration processes and can provide cost-effective and creative solutions as you prepare for the road ahead.
Contact us today for a free introductory consultation.