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Dunphy Best Blocksom
Dunphy Best Blocksom
Mon - Fri: 8 am - 4:30 pm MDT
Call us: 403.265.7777

Resolving Family Disputes Outside the Court System

June 23, 2016 by DBB Law in Family Law, News

By Jonathan Griffith

 

Separation and Divorce can be a very challenging time.  The financial and emotional strains are hard enough but many folks who are separating aren’t aware of how to even begin the process of legally dividing assets, setting up parenting arrangements or providing for financial support.  Often people start by filing documents that can initial a lengthy court fight without even being aware that there are other ways to resolve family disputes.

 

These other ways are sometimes called Alternative Dispute Resolution (or “ADR”, for short).  Here is a list of the tools that you can use to access the more common forms of ADR:

 

Legal Advice and Legal Information

 

It’s helpful to know what your rights and obligations are before engaging in a resolution process.  Trusted legal advice can help you avoid problems with settlement agreements that run contrary to the law and can give you the confidence that you need to arrive at a fair settlement.  You may wish to book a one hour consultation with a family law lawyer to go over you the information you need before engaging in any resolution process.  If you cannot afford to hire a lawyer, you may wish to explore your options to obtain subsidized legal advice with Calgary Legal Guidance or Legal Aid Alberta.

 

Kitchen Table Discussions

 

People can sometimes solve a lot of issues between them if they take a moment to talk before filing anything with the Courts.  Sometimes these discussions are called “kitchen table discussions” because they can happen around your own kitchen table.  These discussions can happen anywhere, though.  You might choose to have this talk over the phone or at a public place, for example.  You’ll want to find the right time, place and circumstances that provide a comfortable way to talk about settling your affairs post-separation.

 

This process is usually a little easier with some legal advice so you know what needs to get settled.  Before you have your talk, you’ll want to go over your goals and come up with some ideas for how you think some of the issues can be solved.  Keep in mind, though, that you also want to be flexible.  You want to find a way to cooperate with the other party and listening to their ideas can help with that.

 

If you run into difficulties settling any of the issues try to understand why you disagree and then move on to other issues.  A kitchen table discussion can still be helpful even if you cannot settle everything.  Figuring out what you and your former partner can and cannot agree on is very valuable information and can assist you with deciding how to move forward.

 

 

4-way Settlement Meetings

 

Sometimes you need a little more assistance when you are trying to talk to your former partner about settlement.  4-way settlement meetings can help the conversation remain focused and informed.

 

In a 4-way settlement meeting you and your lawyer meet with your former partner and their lawyer.  All four people work together to try to come up with solutions so that you can come to a negotiated agreement with your former partner.  Lawyers can help with this discussion because they can address some of the power imbalance that might exist between you and your former partner. Just having a trained legal expert at your side can help you feel more confident about discussing resolution. Also, lawyers can provide immediate legal advice as the discussion moves forward so that the discussion can be informed by the law.

 

4-way settlement meetings are not the place to have nuanced legal arguments about your case.  There is no judge present so lawyers participating in this type of ADR are trying to find ways to arrive at a negotiated settlement without much arguing.  A 4-way settlement meeting is a lot like bringing your lawyer to the kitchen table discussion described above because they are only there to assist you in coming to your own agreement.

 

Mediation

 

Mediation is one of the most common forms of ADR.  In mediation you and your former partner voluntarily agree to retain a neutral and objective third party to help the two of you arrive at your own agreement.  Mediators can have many different backgrounds but you want to find a mediator with a specific background in mediating family disputes.

 

Mediation is confidential so most of the information you share in mediation is protected. Also, the conversations you have in mediation are not admissible in court.  So, participants can freely discuss options for settlement without worrying that what they say is going to be used against them later.  Mediators will not share their opinion of what should happen, nor will they try to provide any advice.  Mediators are experts at helping parties find a way to come to their own agreement and will refer you to lawyers for advice.

 

If you require more legal support, you can also bring your lawyer to mediation for a process called “lawyer-assisted mediation”.  In lawyer-assisted mediation, the lawyers are only present to provide their clients with legal support.  Lawyers can help by making sure that you have all of the information you need to make decisions during mediation.  Again, your lawyer is not there to fight a detailed legal battle on your behalf.  While lawyers will sometimes help you state your interests, they are not there to convince the mediator who is right and who is wrong.

 

Mediation works best when both parties are ready to come to the table to discuss a fair settlement agreement.  For mediation to be successful both parties have to be open and honest with each other and exchange all of the information needed to make good decisions.  Mediation becomes difficult and challenging when there are severe power imbalances that cannot be remedied by the mediator and when at least one of the parties refuses to participate.

 

Early Neutral Evaluations (D.R.O.s and J.D.R.s)

 

An early neutral evaluation is similar to mediation because you obtain assistance from a neutral third party to help you arrive at a fair deal. The largest difference between mediation and early neutral evaluation is that in this process the mediator sometimes provides their opinion of how the law might impact your circumstances.  This can be very helpful when the reason for a dispute is a fundamental misunderstanding about how the law operates in Alberta.

 

A Dispute Resolution Officer (D.R.O.) is a senior family law lawyer who volunteers with the Court to assist parties with solving problems related to child support.

 

A Judicial Dispute Resolution meeting (J.D.R.) is very similar but you meet with a judge or a justice who might provide you with an opinion of how your dispute might be resolved if it went to trial. J.D.Rs can be booked for any family law issue, not just child support.

 

D.R.Os and J.D.Rs are two common forms of early neutral evaluation in Alberta.  You can book a D.R.O. or a J.D.R. with the assistance of a lawyer or through the Court’s services.

 

 

Parenting Coordination

 

Parenting disputes can be some of the most difficult to solve because people often differ greatly on how to parent children after separation.  If you are finding it very difficult to agree on anything with your co-parent and you are having difficulties understanding how to navigate your conflict, you might consider retaining a parenting coordinator to assist.

 

In parenting coordination you and your co-parent both agree to retain an expert on parental conflict.  The parenting expert is typically retained for a longer term (ie: 6 months – 2 years).  Over the time, the parenting expert will attempt to assist you and your co-parent with changing the way you parent together so that your conflict decreases.  Typically, you would engage the services of a parenting coordinator after you have already come to an agreement with your co-parent on how the two of you will parent your children so that your parenting coordinator can assist the two of you with implementing your agreement.

 

If you and your co-parent agree, you can also give your parenting coordinator the authority to make minor decisions.  For example, parenting coordinators can assist parties with making minor scheduling changes or enforcing pick-up/drop-off times.  If you cannot come to an agreement, the parenting coordinator will make a binding decision.  People voluntarily agree to this because it is ultimately far less expensive than arguing over these types of issues in court and because the parenting coordinator can help the parties make better decisions about these kinds of conflicts.

 

Parenting coordination can be a confusing and difficult process to initiate because it has to be tailor-fit to your circumstances and the kind of conflict you are experiencing.  Lawyers can assist you with building the proper arrangement with a parenting coordinator.  If you are not using a lawyer to assist you with this, you, your co-parent and the parenting coordinator should carefully discuss the terms of your arrangement so that everyone can decide if parenting coordination is ultimately the right fit.

 

Arbitration

 

Arbitration is another way to solve disputes out of the court system.  An arbitrator is a lot like a private judge because they are given the authority to make final decisions for you.

 

People sign up for arbitration because there a number of advantages over the court system. For example, arbitration is confidential. In Court, however, every document filed and every argument presented becomes a part of the public record.  Nothing is confidential.  In Arbitration, your private and personal information can be better protected.

 

Arbitration can also be faster and less expensive than court. If you and your former partner agree, you have a lot of power to build the arbitration in a way that suits your specific needs.  The Court system is set up as a “one size fits all”. It is a standard process for everyone. For that reason, and because of the backlog in the court system, court can be a very lengthy and expensive process. Arbitration can be a lot faster if everyone agrees on a faster process for arriving at a final decision.

 

Sometimes you can combine mediation and arbitration in a process called “Mediation/Arbitration” (or “med/arb”).  In med/arb you engage in mediation as set out above.  The difference is that any issues that are not solved in the mediation are put over to an arbitration process with the same person who acted as your mediator.  This process can give you and your former partner the opportunity to solve everything that you can in the mediation environment but then give you both a way to solve the issues on which you cannot agree.

 

Mediation/arbitration can be a very powerful tool to help you resolve your separation outside of the court process.  However, it is strongly advisable to have some independent legal assistance to provide you with support in building the right process for you and your circumstances.

 

You should consider an ADR process.  ADR can be faster, less expensive and less traumatic than Court. However, ADR is not appropriate for everyone.  Extreme power imbalances or safety issues can dramatically affect whether or not an ADR process is right for you.  It is strongly advisable to discuss your ADR options with a legal expert to get more information about how to engage the ADR process and to get help with picking the right process for you. Also, if you are or have experienced domestic violence you should get immediate assistance with that before engaging in ADR.

 

Get in touch to learn more about our ADR services.