Litigation should be the ‘last recourse’ in family matters
By Paul Russell, AdvocateDaily.com Contributor
When a marriage falls apart, alternative dispute resolution (ADR) can be an efficient way for couples to craft a separation agreement or privately resolve their matter in a manner that suits their particular circumstances, says Toronto family lawyer Jennifer Daudlin.
“Litigation is definitely not the only way to go when you are separating — there are other options available that can be more economical and better suited for the particular situation,” says Daudlin, founder and principal of Daudlin Law.
ADR can take many forms, starting with the two parties sitting down and working out a settlement on their own, with legal counsel often brought in to help negotiate and provide independent legal advice, she tells AdvocateDaily.com.
The second option is mediation, which can be done either in an open or closed format, Daudlin says.
Depending on the situation, she says the mediator can meet with the two parties separately or in the same room.
“Shuttle mediation, where the parties remain in separate rooms and the mediator goes back and forth, is often used in high-conflict cases or when there are allegations of domestic abuse,” Daudlin says.
Couples can also choose a collaborative process where specially trained family lawyers assist the parties to negotiate a settlement of the issues, often with the assistance of other collaboratively trained professionals (financial professionals or parenting professionals for example), and both sides enter into an agreement not to litigate unless they agree otherwise or the process fails, she says.
If mediation is unsuccessful — or inappropriate in the circumstances — another alternative to court is arbitration, though many family law cases may be a combination of mediation and arbitration, simply referred to as MED/ARB, Daudlin says.
“A mediator/arbitrator will work with the parties in an attempt to facilitate a resolution of their matter. If the mediation is unsuccessful, they will hear submissions of the parties and make a decision, called an award,” she says.
If there are children involved, Daudlin says issues between the parents don’t necessarily stop after a separation agreement is reached.
“Particularly in high-conflict cases, parenting co-ordinators can be hired to mediate future disputes between the parents on parenting issues, and to make arbitral awards in the event of an impasse,” she says.
Clients should know and understand the limitations of a parenting coordinator’s authority before entering into an agreement with them, Daudlin says.
“Parenting coordinators are secondary arbitrators that assist parents in negotiating disputes that can arise from established parenting plans, whether reached by separation agreement or court order,” she says.
Daudlin recently completed her training in mediation, arbitration and parenting co-ordination and can offer those services to her clients, noting the main advantage of ADR is that couples have a greater voice in developing the separation agreement.
“People are not leaving it up to a judge who has no idea about who they are and the intricacies of their particular family and circumstances,” she says.
Having the former spouses working closely with the mediator has real advantages, Daudlin says.
“Since they are part of the process and very much the authors of the agreement, they are more likely to buy into it and believe in the sustainability and fairness of the result as opposed to being told by a court, a stranger, what they have to do with their property, their money and, in particular, their kids,” she says.
Another advantage is that most times, the parties can determine the timeline of their mediation or arbitration, coordinated, with the professional they’ve hired, instead of being at the mercy of the availability of the court, Daudlin says.
“ADR can also ensure a level of privacy that is not available through the courts, which is a great value to people who don’t want their dirty laundry aired in a public forum,” she says.
Daudlin says another benefit is the process can be tailored to reflect the family’s cultural background.
“The parties can choose an arbitrator/mediator who is a member of their community, or at least who is known to be culturally sensitive or have some expertise in working with specific demographics and will understand their specific needs,” she says.
It’s important to understand that ADR and in particular mediation, is something that can be accessed at any time, even after a court proceeding has been started, Daudlin says.
“Many courts have court-assisted mediation programs to which judges frequently refer family law litigants. The program offers six to eight hours of highly subsidized mediation, scaled to income. At Toronto’s Superior Court of Justice, the program is called mediate393. Both provincial courts in Toronto offer the same service, as do many other courts province-wide,” she says.
Lawyers have a duty to their clients to try and assist them in resolving their dispute amicably, efficiently and in a cost-effective manner, Daudlin stresses.
“In most cases, ADR or a combination of ADR and litigation better serves our clients’ needs and interests in that regard.
“Litigation, in most cases, should be the last recourse, wherever possible, with all other options for dispute resolution explored first, and reconsidered as viable settlement options, thereafter,” she says.