December 2, 2023

‍When it comes to resolving family law disputes in Alberta, the traditional court process can often be lengthy, costly, and emotionally draining. But what if there was another way? Thankfully, Alberta has alternative dispute resolution (ADR), a suite of strategies designed to resolve disputes without the need for a formal court hearing. The Court of King’s Bench of Alberta published a recommendation three years ago where it stated, “the Court encouraged counsel and the public to access alternative dispute resolution mechanisms.” ADR is gaining popularity in Alberta family law due to its many benefits, including cost savings, quicker resolutions, and greater control over outcomes.

The simplest form of alternative dispute resolution is mediation, a process where a neutral third party (the mediator) facilitates discussions between the disputing parties to help them reach a mutually satisfactory solution. But there are other forms of ADR too, like arbitration, where an arbitrator makes a binding decision after hearing both sides. This article will guide you through the nuances of these methods, helping you make an informed choice for your family law case.

Alberta family law supports the use of ADR, recognizing the need for a more amicable and less adversarial approach to resolving family disputes. Family lawyers in Calgary also recommend alternative dispute resolution. Whether it’s issues around separation and divorce, child custody, or property division, ADR can provide a more peaceful pathway to resolution.

Exploring Mediation: The Simplest Form of Alternative Dispute Resolution

Mediation, the simplest form of alternative dispute resolution, is a voluntary process that offers significant advantages over traditional courtroom battles. The focus of mediation is on collaboration and finding common ground, rather than winning or losing. It allows the parties involved to maintain control over the outcome, rather than having a judge impose a decision on them.

The mediator’s role is not to take sides or make judgments but to facilitate constructive dialogue between the parties. They help the parties express their needs and interests, explore options for resolution, and work towards a mutually acceptable agreement.

Mediation in Alberta family law is confidential and conducted in a relaxed, informal setting. This helps to reduce the stress and anxiety often associated with family disputes. It’s also flexible, allowing for creative solutions that may not be possible in a court setting.

The Process of Mediation in Alberta Family Law

The process of mediation in Alberta family law starts with the selection of a mediator. This could be a lawyer, social worker, or other professional with training in mediation and Alberta family law. Both parties must agree on the choice of mediator. Once the mediator is chosen, the parties will meet with the mediator to discuss the issues at hand.

The mediator will guide the conversation, ensuring both parties have a chance to express their views. The mediator may also meet with each party individually to understand their perspectives better. The goal is to identify the issues, understand the parties’ positions, and explore potential solutions.

Once an agreement is reached, the mediator will draft a Memorandum of Understanding outlining the terms. This document can then be used to draft a formal legal agreement. If the parties cannot reach an agreement, they retain the right to proceed to court. However, the discussions that take place in mediation remain confidential and cannot be used in court.

Advantages of Choosing Mediation Over Court

Choosing mediation over court in Alberta family law disputes offers numerous advantages. Firstly, it is faster and less expensive than court proceedings. Court cases can drag on for months or even years, and the legal fees can be exorbitant. Conversely, mediation can often be completed in a few sessions, resulting in significant time and cost savings.

Secondly, mediation promotes better communication between parties. The mediator facilitates dialogue, helping parties to express their feelings and needs in a constructive manner. This can be particularly beneficial in family law disputes, where maintaining relationships is often important.

Thirdly, mediation provides more control over the outcome. In court, the judge makes the decisions. However, in mediation, the parties themselves reach an agreement, ensuring that the final outcome is mutually satisfactory and meets their unique needs.

Understanding Family Law Arbitration

While mediation is the simplest form of alternative dispute resolution, another important method in Alberta family law is arbitration. Arbitration is a process where a neutral third-party, known as an arbitrator, hears evidence and arguments from both sides and then makes a binding decision.

Family law arbitration can be a more formal process than mediation, closely resembling a court trial. The parties present their case, call witnesses, and submit evidence. The arbitrator then makes a decision based on the evidence and the law.

Despite its formal nature, arbitration still offers more flexibility than court proceedings. The parties can agree on the rules and procedures to be followed, and the arbitration can be scheduled at a time and place convenient to all.

Role of Family Law Arbitrators in Alternative Dispute Resolution

Family law arbitrators play a crucial role in alternative dispute resolution. Unlike mediators, arbitrators do not facilitate discussions but make decisions. They apply their expertise in Alberta family law to interpret the law, evaluate the evidence, and make a fair and impartial decision.

Arbitrators must ensure that the arbitration process is fair and unbiased. They must give each party an equal opportunity to present their case and must base their decision solely on the evidence presented.

Arbitrators’ decisions are legally binding and can be enforced by a court. However, in some cases, they may be appealed if there are grounds to believe the decision is fundamentally flawed.

Comparing Mediation and Arbitration in Alberta Family Law

Both mediation and arbitration are effective methods of alternative dispute resolution in Alberta family law, but they are fundamentally different. Mediation is a cooperative process focused on finding mutually satisfactory solutions, while arbitration is a more adversarial process where a decision is made by a third party.

Mediation gives the parties more control over the process and outcome. The parties set the agenda, decide on the issues to be discussed, and mutually agree on the resolution. In contrast, in arbitration, the arbitrator controls the process and makes the final decision.

Mediation can foster better relationships between parties, as it promotes open and honest communication. Arbitration, on the other hand, can sometimes be more divisive due to its adversarial nature.

How to Choose Between Mediation and Arbitration

Choosing between mediation and arbitration in Alberta family law depends on various factors. If the parties are amicable and willing to cooperate, mediation may be the best option. It’s less formal, less confrontational, and promotes mutual respect and understanding.

If the parties have a highly contentious relationship, or if there is a significant power imbalance, arbitration may be more appropriate. An arbitrator can ensure that both parties’ views are heard and make a fair decision even if the parties cannot agree.

The complexity of the issues at hand can also influence the choice. If the dispute involves complex legal or factual issues, an arbitrator’s expertise and decision-making authority may be beneficial.

Finding the Right Family Law Mediators and Arbitrators in Alberta

Finding the right family law mediators and arbitrators in Alberta is crucial for a successful alternative dispute resolution process. Look for professionals with extensive experience in Alberta family law and a track record of successful mediations or arbitrations. They should have excellent communication skills, a neutral demeanor, and a deep understanding of the dynamics of family disputes.

Professional organizations like the Alberta Family Mediation Society and the ADR Institute of Alberta can provide lists of qualified mediators and arbitrators. It’s also advisable to seek recommendations from family, friends, or legal professionals who have had positive experiences with ADR.