Resolving Legal Conflicts – Which Process is Right for You?
Ilana Tamari, B.Sc., D.C.S., (Psych), Acc. FM, specializing in Separation and Divorce
Dani Frodis, Family Lawyer, Dani Frodis and Barristers & Robyn Switzer, Associate Family Lawyer with Dani Frodis and Barristers
When we were kids, resolving fights was easy. If we couldn’t force our sibling to do what we wanted, we ran to our parents for help. But as we got older, we realized that there were reasons not to involve mom or dad in every dispute. Sometimes running to mom or dad meant everyone got in trouble. Sometimes the basis of the fight itself needed to be kept secret from mom or dad. Sometimes you just didn’t want to look like a tattle-tale.
As adults, we sometimes need courts to resolve disputes for us when we can’t resolve them ourselves. However, as adults, we realize that there are occasions when using the open-court process is not desirable or appropriate. So, we seek alternatives. There are many different avenues available today to resolve disputes, as the field of alternative dispute resolution continues to grow and evolve to meet the needs of Canadians.
In family law, our options for solving conflict include:
- Negotiation among lawyers or the parties themselves
- Mediation, where a trained mediator assists the parties to reach an agreement, or make decisions about how to proceed
- Arbitration, where a private, neutral adjudicator receives evidence and makes a decision that is binding on the parties
- Mediation-arbitration, where a private neutral individual assists the parties to come to an agreement; if no agreement is reached, the mediator then acts as arbitrator, hears evidence, and then makes a decision
- Family court, where a judge hears evidence and makes a decision that is binding on the parties
Each process has positives and negatives, and it can be a challenge to decide which process will work best to resolve difficult legal issues.
Some factors to consider:
$$$ – The least expensive way to settle a dispute is for the two (or more) parties to discuss the issue and come to an agreement. However, many parties simply aren’t able to do this. Mediation, arbitration, and family court can all cost money – the extent of the expense for each process is often largely a factor of whether or not lawyers are retained and present along the way. Appearing in court self-represented is affordable, although it is often not a good way to get the result you want. While mediation and arbitration often involve paying a neutral third party, they can be faster and more efficient ways of reaching resolution.
Time – It likely isn’t news to you that our family court system is backlogged, under-funded, and slow. Getting a resolution quickly in family court is almost unheard of in the Greater Toronto Area today. Many parts of the country fare worse. When a matter needs to be resolved quickly, private processes are almost always easier to enter expeditiously. That being said, if a resolution is dependent on one particular mediator or arbitrator, it can be difficult to secure a date with the most in-demand individuals. In a court process, resolution is rarely dependent on waiting for a single judge to be free.
Privacy – Our legal system is based upon a number of foundational principles, including that of open courts. We understand that justice should be universal – two families having the same problems with the same factual pattern should achieve the same basic outcome. Open courts guarantee that justice is both done and seen to be done, and that judges are following trends and making decisions based on common standards. Conversely, mediation and arbitration are private processes. While an arbitrator hearing a matter will often release written reasons, those reasons are private and not available for review by other arbitrators, members of the public, or the media. If the airing of dirty laundry is a concern, alternative dispute resolution procedures are desirable. That being said, there are steps that can be taken in court to have privacy protected. Sometimes case names are initialized to prevent identification of the parties involved, and hearings can be closed to the public if there is a good reason for doing so.
Correctness – You may be thinking to yourself that this information is very interesting, “but where will I get a better result?” That is a very good question. This will depend on a number of factors, including which arbitrator, mediator or judge you end up before, how reasonable you and the opposing party are, and how complex the issues in your case are. Where it isn’t clear which process will lead to the best outcome, here are some facts to consider:
- Decisions reached between the parties voluntarily, rather than those imposed by a court or adjudicator, tend to last. Two parents who agree upon a parenting schedule with intimate knowledge of their own needs and the needs of their children, are much more likely to fix upon something that works, rather than a judge or arbitrator who has no real knowledge of the family. Where it is possible, settlement is best.
- Arbitration has its limits. Most arbitration agreements, which parties have to sign to retain the private arbitrator, limit the circumstances in which unhappy parties can walk away from the arbitration process and elect to go to court instead. If you have an arbitrator you don’t like, or who you think doesn’t like you, you are limited to objecting to their decisions based on the traditional grounds of appeal. If you can’t point to an error in fact or law in their decision, you are stuck with it.
- Arbitrators and mediators rely on referrals to keep working. In order to keep business coming in, they may be unwilling to come down too hard on one side or the other, in order to avoid the reputation of being unfair. If the opposing lawyer feeds that decision-maker a lot of work, you may worry that the arbitrator is being overly sympathetic to their client’s case. Rightly or wrongly, this may make the decision you get hard to swallow.
- When emergencies happen, it can be hard to see a mediator or arbitrator on short notice. Busy practices and vacation schedules may mean urgent issues have to be put on hold. Conversely, courts typically have emergency judges available even on holy days and holidays for issues that just can’t wait.
- Many mediators/arbitrators are specialized. If you have a mental health professional as an arbitrator, he may have difficulty assisting you with complex financial issues. Similarly, if you have a lawyer as mediator, she may struggle with issues relating to child development and emotional needs. Choosing the right individual is key.
Dispute resolution isn’t as easy as it once was. Fortunately, we have multiple avenues for solving conflicts available to us. In family law, lawyers, mediators and mental health professionals have ample experience working with families in conflict and are often well situated to advise families about the type of process best suited to work for that family.