Alternatives to Litigation

In family law, many people assume that if parties cannot come to an agreement on their own, their only option is to resort to litigation.  This can be a daunting prospect.  The courtroom is intimidating, and the processes, paperwork, deadlines and procedural rules involved can be complicated to navigate.

There is good news though, as parties have more options now than ever before to minimize the need to go to court or opt out of that process entirely.   While coming to a full agreement with your former partner is ideal, and sometimes the only assistance needed is to get paperwork drafted to make an agreement binding, obviously that doesn’t work for everyone.  Even in high conflict matters, options are available to you.

  1. Dispute Resolution Officers

Many jurisdictions encourage resolution prior to going to court.  In Alberta one of the programs available to people is called a “DRO”.  As part of the court process, if you are making an application for child support in the Court of Queen’s Bench, you are first required to attend with a DRO, or a “Dispute Resolution Officer”.  It is a one-hour appointment at the courthouse that is free of charge to you where you and your former partner attend before an experienced family law lawyer in an attempt to resolve the issue of child support.  While a court date may be booked, be sure to make use of this session to try to come to an amicable resolution out of court.

2. Mediation

Mediation is available through a variety of programs.  In Alberta, the courts have a family mediation program through Resolution and Court Administration Services that is free for parties where one party has a gross income of less than $40,000 annually.  They can help with issues around parenting, support and property. 

Mediation is also available privately.  Many law firms have lawyers who are specially trained in mediating family law disputes.  In such cases, the lawyer would be hired by both parties to be a neutral third party to try to assist parties in coming to an amicable resolution.  In some cases, parties may agree to both attend at the mediation without having their own lawyer, or without those lawyers being present.  In other cases, called “lawyer-assisted mediation”, parties may attend with the mediator and their lawyers to try and get a resolution.  

The rate of resolution during mediated sessions is remarkably high, and while more than one appointment may be necessary, if both parties are committed to the process, resolution can occur without the delays and uncertainty of litigation.  The best thing about coming to a mediated resolution is that you had your say in the outcome.  If going in front of a judge, you never know what Order you might end up with.

3. Mediation/Arbitration

This is a process that begins with mediation but has certainty that if the parties are unable to come to a resolution, a decision will be made.  This process can again be done either with or without lawyers for each party.   Some law firms also have some lawyers who have additional training in arbitration and can offer their services as Mediators and Arbitrators.   While arbitration can be done without the mediation phase, typically mediation is attempted first in the family law context.

Parties would sign a contract with the third-party Mediator/Arbitrator that would give the Arbitrator the authority to decide for them if it became necessary.  They would essentially replace the role of a judge in a court process.  The Arbitration Act allows for this and the decision of the Arbitrator is as binding and determinative as a court ruling.  If parties try mediation but are not successful in resolving their difficulties, the process would move to the “arbitration” phase.  Here they would present all the evidence necessary and put forth their argument to the Arbitrator.  The process, timelines, rules of evidence and format of the arbitration are all customizable to the parties.  Once the process is over, the Arbitrator would issue a formal Arbitration Award to the parties giving the decision.

Arbitration has many benefits.  It allows parties to refine the process to meet their needs and does not have the same procedural requirements that would be encountered in a court process. 

While it sometimes seems more expensive up front because parties must hire an Arbitrator privately, it often ends up saving money, particularly if the other option is going to court, which often requires multiple court visits and if a trial is necessary, booking years in advance due to an overburdened court system.

Please feel free to contact our firm if you have any questions regarding alternative forms of dispute resolution.  All our lawyers are well versed in the practices, and we do have a Mediator and Arbitrator on staff as well.

Disclaimer :

Although we are a law firm, this blog post does not constitute legal advice. It is for informational or entertainment purposes only and shouldn’t be seen as financial or legal advice of any kind. You should consult with a lawyer before relying on any of the information contained in this blog post. We can be contacted at (403) 981 0700 to set up a consultation with one of our lawyers who can review the specific circumstances of your matter and provide you with personalised legal advice.

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