ADR – Alternative Dispute Resolution
What is ADR?
ADR is Alternative Dispute Resolution. It refers to a variety of processes that help people resolve family law disputes without a trial. These processes include mediation, arbitration, and collaborative law.
In British Columbia, ADR is a part of the family law process under the new Family Law Act (the “FLA”), which strongly encourages the separating spouses to resolve family law issues, including but not limited to the care and time with the children, property division, pension division, support provisions etc. through various ADR processes which are better alternatives to litigation.
Part 2 Division 1 of the FLA provides Resolution of Family Law Disputes preferring out of court resolutions. The FLA recognizes and governs the agreements made by parties to resolve a family law dispute, and makes them binding on the parties. The terms of these agreements can be replaced by new agreements in the form of addendums, or by a court order if there is any material change in the circumstances of a party.
Following is the brief description of various ADR processes used in the family law process:
1. NEGOTIATION: This process involves negotiation from both the parties to reach a resolution, which can be done with the help of lawyers. Each party comes with a proposal to retain something while being ready to part away another thing, hence resolving all the issues between them. This way of going back and forth, the parties reach an agreement which should be in some written form for the record and confirmation of the resolution reached.
2. COLLABORATIVE PROCESSES: In these settlement processes the parties and their lawyers work together as a team and sign an agreement that they will resolve all the issues without going to court. The parties can take assistance of professionals such as counsellors, financial advisors, to resolve any complicated issues.
3. MEDIATION: In this process, the parties attempt to reach an agreement with the help of a specially trained person called a mediator, who helps the parties identifying various issues and resolving those issues by compromises and negotiations. This process can be initiated by the parties either before initiating court processes or even after a court action has started.
4. ARBITRATION: This process is similar to court process, but the parties retain a personal judge in this process. The parties present their evidences and arguments just like in the court process, but there is no time sensitivity on the rules or procedure. Also, the parties can proceed at their own pace.
5. MED/ARB: This process is the combination of mediation and arbitration. The parties begin with the process of mediation, but at some point if the mediation is not working, the mediator can take the role of the arbitrator. The parties sign an agreement at the beginning of this process agreeing that the mediator can change to the role of an arbitrator. The agreement should outline the triggering event when the parties acknowledge that the mediation process is not working and as to when and how the evidence or arguments will be brought up so that the arbitration process succeeds on all or some issues, as agreed in the agreement.
6. PARENTING CO-ORDINATION: This process is a child focussed process and is only used to deal with issues about the care of children after the parties have a parenting plan in place by a court order or a separation agreement. The parenting coordinator is a specially trained person, who is hired by the parties with an agreement to help parties mediate the issues by mediation, but if unsuccessful, take the role of an arbitrator and impose a resolution on the parties.
All ADR processes, when successful, require the parties to put all resolutions in writing. These processes help the parties resolve the issues, some of which are very emotional, at the time of separation. Resolving issues through any of these processes and not proceeding with litigation, saves lots of money, time and stress for both the parties.
If you are going through a similar situation, and are in need of a certified family mediator, we can certainly assist you in that. Please do not hesitate to contact us if you have any questions.