Alternative dispute processes Mediation and/or Arbitration, and Parenting Coordination
December 4, 2011In my last newsletter, I summarized the court process, while emphasizing the importance of trying to resolve disputes out of court.
It remains puzzling to me how many cases proceed to court. Family courts across the province are backlogged with cases, most of which should not have even proceeded to court in the first place. Most litigants cannot afford it, yet they nevertheless each pay their lawyer large sums of money to litigate on their behalf.
There is a rise in self-represented parties, litigants who represent themselves in court and, as a result, don’t have to pay their own lawyer to go to court on their behalf. A financial disincentive, however, still exists. Courts can and will impose costs sanctions against self-represented litigants. Therefore and even if a self-represented party is not paying for his or her own lawyer, this litigant can be ordered to contribute towards the legal costs of their spouse.
Again, out of court settlements and resolutions remain the most viable and appropriate options in the vast majority of cases.
MEDIATION
Mediation, which is a voluntary process, remains the most effective alternative dispute resolution mechanism in many cases. Closed mediation is more common than open mediation. Parenting mediators are mental health and/or child development professionals, who are retained to assist parents in negotiating terms of settlement on outstanding parenting issues. Financial mediators are usually lawyers, who mediate the financial issues of child and spousal support, and equalization of property. Financial mediators will often offer “comprehensive” mediation, dealing with both parenting and financial issues.
Separating couples who are seeking a Separation Agreement (or couples who already have an agreement or court order in place), can attend mediation at their own initiative, by contacting a mediator directly. Alternatively, they can be referred to mediation by their respective lawyers.
Please refer to the Mediation tab of my website, for more information on mediation and the mediation process.
ARBITRATION
Arbitration is similar to mediation, in that a neutral third party is engaged by the parties. The significant difference between the two, however, is that a mediator is a settlement facilitator who assists the parties in attempting to reach an agreement on the outstanding issues. An arbitrator, on the other hand, sits as a decision-maker. Through an Arbitration Agreement signed by the parties, the arbitrator is given a mandate to receive evidence from the parties and their witnesses (either in writing or orally), and has the authority to make a decision on the outstanding issues specified within his/her mandate. The arbitrator’s decision is binding on the parties and, usually, the Arbitration Agreement provides that the arbitrator’s decision can only be appealed as a result of an error in law (the same as a judge’s decision).
The arbitration process is completely voluntary, and requires the agreement of both parties to proceed to arbitration. Some Separation Agreements include mandatory arbitration clauses in the event of a dispute, which may then require that the parties proceed to arbitration, rather than to court.
Arbitration also requires the cooperation of both parties. The parties must agree to and respect timelines and orders that are set by the arbitrator, as the process unfolds. Disclosure orders must be adhered to, for example. If one of the parties does not cooperate with the process, arbitration may be rendered ineffective.
Finally, arbitrators charge for their services, whereas judges don’t (other than the filing fees for court applications, the legal fees for your own lawyer and the possibility of being ordered to pay your spouse’s legal costs). Arbitrators’ rates usually mirror lawyers’ rates and, therefore, an arbitrator’s fees can be quite expensive. Generally, the parties agree to share equally in the up front cost of the arbitration, with the arbitrator given the mandate to re-apportion costs at the conclusion of the hearing.
MEDIATION-ARBITRATION
A relatively new, emerging process, is mediation-arbitration, or “med-arb”, as it is often referred to. Med-arb is, as the name implies, a combination of mediation and arbitration. Again, a Mediation-Arbitration Agreement sets out the parameters of the process. Generally, it provides that the mediator/arbitrator will mediate the outstanding issues, in an effort to assist the parties in reaching a settlement. If the parties are unable to settle, the mediation process turns into an arbitration hearing, which empowers the mediator/arbitrator to make a decision on the outstanding issues. The philosophy behind the med-arb process is that a skilled mediator will be able to facilitate an agreement, thereby avoiding the arbitration hearing. This may be the first time that the parties have sat across the table from one another, and some preliminary discussion may in fact reveal that the parties are much closer to settlement than they expected, and that they are able to agree on some or even all of the outstanding issues.
PARENTING COORDINATION (PC)
Parenting Coordinators are health care professionals who assist parents in implementing terms of a Parenting Agreement or Court Order.
Parenting Coordination is a service for high-conflict couples who already have a court order or agreement in place, and who are experiencing chronic difficulties in resolving parenting issues between themselves. (Note that we are referring to cases where significant conflicts persist more than two years after the separation. Many separating couples exhibit high conflict in the early stages of separation, but usually those issues are resolved either as a result of an agreement or an interim court order.)
True high-conflict couples are different. These couples keep returning to their lawyers with issues that, from the legal standpoint, might seem inconsequential, including vacation plans, Christmas arrangements, pick-up and drop-off issues, children’s activities, or minor adjustments to the parenting schedule. But even when, on the surface, such issues seem relatively minor, there is always a risk that they might escalate to a point of crisis. For example, problems with access may turn into outright denial of access; or issues at pick-up and drop-off times might end up requiring police involvement. Some parents abdicate their responsibilities altogether, as in failing to make important decisions about which school their child should attend, for example.
Traditionally, such clients would turn up at their lawyers’ offices over and over, and sometimes court involvement might be necessary. Parenting Coordinators (PCs) provide an alternative to that route. In the Parenting Coordinator model, chronically high-conflict couples may try to resolve their issues with the assistance of a mental health professional, rather than resorting to litigation.
The PC is like a “referee”, who can make binding decisions intended to implement the spirit and intent of an agreement or court order, rather than re-writing or substantively changing the agreement or order itself.