Trends continuing to grow in family dispute resolution

BY THE TIMES OCTOBER 25, 2012

In last month’s column, I mentioned a new trend in family-law circles – alternative dispute resolution – which involves employing alternative means of resolving legal disputes outside of the court process.

Arbitration and mediation are two common methods.

Arbitration has been used predominantly in many types of commercial disputes.

In fact, the Commercial Arbitration Act has been specifically amended to include family-law disputes.

Arbitration is a fast, flexible, and private option to settling family-law disputes, no matter how large or trivial the dispute may be.

The parties must agree on the issue of dispute, the choice of arbitrator, the timing and payment of the arbitrator’s fees.

The arbitrator will have professional experience in family-law matters and may not be a practising lawyer.

Arbitration is voluntary in family-law matters.

However, parties can agree to resolve future disputes by inserting an arbitration clause in their agreement. This is most useful for separation agreements.

Arbitration awards – like court orders – are binding and parties must pay the costs of the arbitrator personally, while the court process costs are minimal.

However, once you factor in the costs of prolonged, acrimonious litigation with lawyer’s fees on both sides, the cost of an arbitrator is a relatively small price to pay.

Alternatively, mediation is a cooperative, managed, process of negotiation.

Mediation can begin at any time and even once litigation has commenced.

The mediation process has four basic steps.

Parties will meet with the chosen mediator, either together or separately. The process, ground rules, and procedures are explained, goals and objectives set.

The mediator will assess the dynamics between the parties and screen for any abuse or control issues between the parties.

Full disclosure and exchange of the parties’ financial information is the next step. It calls for absolute honesty and good faith.

Each party will complete a formal financial statement setting out all assets, liabilities, income, and expenditure together with supporting documents to prove these.

Expert reports may be needed to assess children’s needs, evaluations of business assets, etc.

Once the information is gathered and reviewed by all parties, a mediation agreement is signed and the mediation will begin.

The issues in dispute will be identified and discussed.

If the mediation is successful, the medi-tor will prepare an informal list of agreements and all parties must sign their acknowledgement.

The final stage involves setting the terms of the agreement into more formal language in a legal document, typically a separation agreement.

Once signed and executed by both parties, it becomes legally binding and enforceable. For example, a copy of the separation agreement may be handed to family maintenance enforcement, to secure the payment of your support obligations.

Finally, a tip for successful mediation: Enter the process with an open mind and actively listen to what the other party is saying.

Your goal is to reach a fair settlement for all, for the immediate future and years to come, particularly in the case where young children are involved.

Be honest.

Distrust and dishonesty and bringing up all the misdemeanors of the past will only serve to derail the mediation process, often beyond repair.

Next month’s article, the final part in this three-part family-law series, will cover how common-law and same-sex couples can protect themselves in advance of the new act, which will be coming into force March 2013, with respect to the new rights and obligations regarding property and support under the act.

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