The goal in any family law dispute is to resolve the issues that the parties cannot reach agreement on in the most efficient and cost-effective manner possible. As a result, many clients prefer to use alternative dispute methods to resolve their disputes such as mediation and arbitration. If effective, these processes will allow the parties to bypass a potentially costly and lengthy trial and resolve their issues in a less formal and private setting. It should be noted that while these can be highly effective methods in many cases, they may not always be the most appropriate options. In extremely contentious proceedings or situations where one party is fearful of the other, these more informal settings may put one party at a disadvantage or cause both parties to spend time and money on a process that was never likely to work in the first place.
However, there are instances where an ADR process that is otherwise likely to fail can be saved and successfully brought to a resolution if the parties and their lawyers are able to identify and appoint the right ADR professional to mediate or arbitrate the matter. In some cases, proceeding straight to trial will be the best option for everyone involved, while in others using an extremely senior ADR professional may be necessary.
When the parties can commit to making the effort, however, these less formal processes are excellent options for the resolution of various family issues such as property division, spousal and child support obligations, and decision-making responsibility and parenting time (custody and access) arrangements.
At Mincher Koeman, we have represented countless clients in family law mediation and arbitration proceedings. Depending on the situation and the client’s preference, we can provide advice and guidance to a client throughout the process behind the scenes, or we can advocate on behalf of a client directly. Either way, we will strive to ensure that our client’s interests are represented and that a satisfactory outcome is achieved.
People tend to use the terms interchangeably, however, there are significant differences between the two processes.
Mediation is a process of negotiation between the parties, with a mediator acting in the role of a referee. A mediator will help to guide the negotiation and keep things on track, paving the way for the parties, or their representatives, to reach mutually agreeable resolutions to any outstanding issues. The mediator does not issue a decision at any point; they serve solely in the role of facilitator. Choosing the mediator is a crucial part of the process as mediators are not regulated in Alberta, so we will ensure that an appropriately qualified mediator is appointed.
Arbitration is a quasi-judicial process. In arbitration, the parties have more control over the process and they can determine the degree of formality. Depending on the parties’ preferences, the arbitrator can hear from both parties or their representatives in a less formal setting or they can institute a process that resembles a formal private trial and follows the majority of the rules relating to court procedure and evidence. The arbitrator will carefully weigh each party’s position on all issues and in the end, they provide a legally binding decision that both parties must adhere to. This is important to note, as some clients may not fully comprehend that they will be legally bound by an arbitrator’s decision until it’s too late. Like mediators, arbitrators are not regulated in Alberta so choosing the right arbitrator for a matter is a crucial part of the process.
There are a number of considerations when resolving a family dispute using alternative methods, some of which may be beneficial, and some of which may not, depending on the situation.
At Mincher Koeman, our family law lawyers have considerable experience in advising and advocating for clients in mediation and arbitration. We will adjust our involvement based on each client’s needs, whether simply acting as an off-site advisor or representing their client in person for the duration of the process. We will always provide honest and practical advice with respect to the best method for any family matter to proceed in order to minimize cost and inconvenience for each of our clients. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
707 7 Ave SW #1300,
Calgary, AB T2P 3H6
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