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Mediation and Arbitration in Divorces

Mediation and Arbitration in Divorces

Posted by Avery Zeidman | Published December 15, 2015

Divorce and separation can be emotionally and financially draining for all involved. Getting through it civilly can be very challenging and it is important you know what resources are available to help you through the process. Mediation and arbitration are alternative, and in many ways less complicated methods of resolving a divorce or separation.

There are many significant benefits to employing alternative dispute resolution (ADR) methods such as mediation or arbitration. The most common are, it is often cheaper than going to trial and including the courts, it is often quicker, there is greater privacy, particularly in the case of mediation which is often closed and finally, the parties have a greater measure of control in what the outcome will be.

Mediation can be very helpful during a divorce and/or separation.  It is an alternative form of dispute resolution that aims to have opposing parties have their issues voiced in a controlled and amicable manner.  It is especially helpful for divorcing couples with children who will be affected by the split.  During the course of mediation, adults can also learn and apply certain skills that are beneficial for maintaining positive and appropriate communication after the proceedings. Mediation has many advantages and in most cases, the parties involved usually comply with the terms settled on, as it usually includes mutually agreed upon resolutions.

A divorce and/or separation mediation process is often handled by a family law mediator. This individual is a specialized and licensed neutral third party who helps couples come to a satisfactory agreement. They help guide individuals to a resolution by informing them of how they could be affected legally and help brainstorm realistic resolutions to resolve any areas of conflict.

They do this by allowing one party to speak at a time, helping each party depersonalize the issues and even at times requesting a caucus. That is, where each party is alone with the mediator in order to express their needs. This is all achieved through a series of meditation sessions. It is very important to note that mediators do not give legal advice nor do they make decisions. Their role is simply to facilitate a way for a resolution. They also cannot enforce any decisions agreed upon by the parties involved.

Mediations are usually closed. This simply means that nothing discussed in the session can be repeated during trial. It is advisable that each party speak with their lawyer before a mediation proceeding. Do not sign or agree to any resolutions without first discussing it with your family law attorney.

It is also important to remember that a mediation is only truly effective if there is no imbalance of power between the two parties.  Participants are usually screened to detect any evidence of abuse or violence prior to the mediation.

Arbitration is another form of dispute resolution. It is different from its more informal counterpart mediation, in that it is conducted in a more formal setting, where a legally binding decision is made and has to be adhered to by involved participants who would have agreed to certain irreversible conditions beforehand. It is a cheaper and faster process that most closely represents an actual trial.

An arbitration agreement encompasses:

  • who the arbitrator will be

  • issues to be addressed

  • agreement to waive the right to go to trial thereafter

  • a convenient time for the arbitration

It is important that both sides make all their demands and issues known in the arbitration agreement, because a decision can only be rendered on issues set in the agreement. An arbitrator is also a neutral third party and is helpful in resolving issues such as child custody. In this specific issue, they look primarily at what is best for the child/children involved and they are governed by the Children’s Law Reform Act (R.S.O. 1990, c. C. 12).  For more information on arbitration and mediation, visit here.

When divorcing or separating, it is important that you seek counsel from an experienced family attorney. A Zeidman family lawyer can help guide you through the legalities surrounding this trying time in your life. You should be aware of your rights and responsibilities and how any legal decisions you make can affect your life moving forward.

In Ontario, certain criteria has to be met in order to be eligible for a divorce. First, you must be legally married, two, there must be no possibility of reconciliation (e.g. you no longer live together or do not intend to) and three, you or your soon to be ex-spouse must have lived in the province for at least a year before filing. If you need more information about resources available to you in Ontario concerning divorce or any aspect of family law, click here.

Divorces can be long and drawn out emotional processes, as well as financially draining.  Let one of the lawyers at Zeidman Law and their supportive staff help you come to a mutually beneficial resolution for all involved. We have years of experience in representing families across Ontario in their family law matters, such as custody placement, spousal support, restraining orders, cohabitation agreements, divorce, separation and child support.


If you or a loved one are thinking about or planning to move ahead with a legal separation or divorce, please do not hesitate to call or visit us today. We will be happy to provide a free consultation to hear you out and offer you advice on your best legal options.

 
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