Family law alternatives to litigation — part 2
By AdvocateDaily.com Staff
In the final instalment of a two-part series, Toronto family lawyer Julia Tremain explores various litigation alternatives to resolve family law disputes.
“When I meet with clients, I walk them through the pros and cons of each option, so that they can decide the approach they want to take from the outset,” says Tremain, partner with Waddell Phillips Professional Corporation.
Here is her look at a few of the most popular methods:
“A mediator can’t make any decisions, but they can help with the negotiations, and clarify points of disagreement,” Tremain explains.
A recent survey of legal practitioners by the Canadian Forum on Civil Justice (CFCJ) found that 89 per cent of Ontario lawyer respondents said they used mediation to resolve disputes over matters including custody and division of property.
The survey, conducted in partnership with Canadian Research Institute for the Law and the Family, canvassed 160 family lawyers from British Columbia, Alberta, Ontario and Nova Scotia on their use of litigation, mediation, collaboration and arbitration. Ontario lawyers were the most likely to utilize mediation, according to the results, with just 11 per cent of respondents in this province failing to report its use.
Collaborative Family Law
“Collaborative law is similar to mediation, but it’s more about the parties working together with counsel to find a negotiated agreement,” Tremain says of this increasingly popular method of family law dispute resolution.
Lawyers frequently receive specific training in techniques designed to reduce tension and improve communication between the parties, helping to guide them towards a solution to their legal issues that works for them both.
The CFCJ report says less than half of the lawyers in Ontario offer a collaborative service to clients, a long way behind Nova Scotia, where an overwhelming 86 per cent of family lawyers have embraced the process.
Whether they offered it or not, most respondents strongly agreed that a settlement arrived via this method made it “easier for the parties to co-operate in the future than other dispute resolution processes.”
"This process is most similar to litigation in court. The arbitrator can make rulings like a judge, but the advantage is that you get to choose your decision-maker,” Tremain says.
By contrast, she says parties in litigation must rely on the luck of the draw when it comes to the judge hearing their case.
“You might get someone who knows a lot about family law, or you might get someone who’s brand new to the area,” Tremain explains.
According to the CFCJ report, there may be room for greater adoption of arbitration in Ontario, with just 28 per cent of family law practitioners in this province reporting that they use it to help resolve their clients' disputes over such matters as custody and division of property.
Alberta lawyers were the most likely to utilize arbitration, with 38.7 per cent of respondents from that jurisdiction reporting its use as part of their family law practices.
Click here to read part one where Tremain highlights the benefits of negotiated settlements.