Alternative Dispute Resolution, or ADR, is an umbrella term for non-adversarial approaches to getting divorced. ADR is an opt-in alternative to litigation, so you and your spouse must first decide that you wish to attempt to resolve your issues outside of a courtroom. Then, you must choose an ADR approach that works for you both. The various ADR approaches include: negotiation, mediation and arbitration. Being informed about the advantages and disadvantages of each approach is key to spending your time and money wisely.
There are several means by which a divorcing couple could use negotiation as a tactic. Negotiation can be a very informal and flexible way to reach an agreement. The personal negotiation process involves you and your spouse hearing one another out and creating a separation agreement that meets both of your needs. By filing an uncontested divorce, lawyers never need to be involved. Anyone is entitled to file the paperwork for an uncontested divorce themselves without ever setting foot in a courtroom.
Some key considerations when putting together a separation agreement include: child custody, asset division and support payments. Thistoo has asset and support calculators, which can be used to guide this discussion. Our separation agreement tool generates a comprehensive and personalized court-ready agreement for you and your spouse.
Negotiation does not need to involve a third-party. However, if you feel you would rather have a lawyer represent your interests during negotiations, either spouse is entitled to such an option.
Collaborative Family Law is yet another option. This burgeoning approach allows you the benefit of a professional team of legal, financial, family and other experts working together for you. These are professional who truly want to seek an agreement outside of court, as your lawyer who represents you during negotiations cannot represent either of you in court.
Mediation involves using a mediator in order to come to an agreement. Though mediators are usually social workers, psychologists or even lawyers, they cannot offer legal advice. The mediator is simply present as a neutral party who suggests a means to solving the conflict at hand. Prior to starting the mediation process, your mediator will ask you to undergo a screening process to see if it's right for you. In circumstances where face to face conversation with your spouse is difficult, shuttle mediation may be recommended. Shuttle mediation is a process whereby the mediator speaks to each spouse separately. All negotiations would go through the mediator. In both traditional and shuttle mediation, if at any point you are unsatisfied with the process or cannot reach an agreement, mediation will end.
You can access family mediation services at family court locations in Ontario. There are no fees associated with on-site mediation in the court facility but there are sliding scale fees for off-site mediation. Another option is to hire a private mediator.
Arbitration involves hiring a third-party to resolve your conflict. Unlike mediation, an arbitrator provides a decision which you must follow so long as it follows the law. However, an arbitrator can only decide on issues that you ask them to resolve. These issues can include custody, support, access and division of assets, depending on your needs.
Beneficially, the divorcing spouses may select the arbitrator(s) of their choice. If each party selects an arbitrator, the two arbitrators appoint a third. The procedure can be as formal or informal as the involved parties determine. By choosing arbitration as your method of Alternative Dispute Resolution, you and your spouse will have less control over the process as opposed to negotiation, mediation or collaborative law. However, in certain circumstances this may be the approach you’d like to take. As opposed to mediation where a mediator provides advice which you may reject, an arbitrator determines the outcome on an issue once each spouse makes their case. Therefore arbitration results in a final decision, though arbitrators cannot grant a divorce. Arbitration can be faster but more expensive than going to court. This is because spouses must seek legal advice before choosing to arbitrate.
The Choice Is Yours
It is important to note that there are situations when ADR may not be the ideal approach such as when one or both spouses are not prepared to be collaborative or in instances where abuse or power imbalances are involved. That being said ADR professionals do implement a screening process and offer structured means by which to ensure the safety needs of their clients. So long as both spouses respect the collaborative nature of ADR, it can be a very beneficial alternative. Many appreciate the level of discretion, informality and control that ADR offers. As well, by choosing to forgo litigation, spouses avoid the stress and financial burden of a trial. Ultimately, knowing that you have options beyond litigation can help empower you to take control of how your divorce is handled.