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Difference between revisions of "Resolving Family Law Problems out of Court"
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Resolving Family Law Problems out of Court (view source)
Revision as of 20:31, 5 January 2013
, 20:31, 5 January 2013no edit summary
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Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, and there is no evidence and no formal rules of procedure. | Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, and there is no evidence and no formal rules of procedure. | ||
Arbitration is governed by the ''Arbitration Act'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''Family Law Act''. | |||
Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family Law arbitrators" and have to have practiced as a lawyer for ten years and have additional training in arbitration, family violence and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they are both litigators and arbitrators. More information about the training requirements of family law arbitrators is available at the website of the <span style="color: red;">Law Society</span>. | Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family Law arbitrators" and have to have practiced as a lawyer for ten years and have additional training in arbitration, family violence and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they are both litigators and arbitrators. More information about the training requirements of family law arbitrators is available at the website of the <span style="color: red;">Law Society</span>. | ||
===Mediation and Arbitration=== | ===Using Mediation and Arbitration Together=== | ||
Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of breaking an impasse, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called "med/arb." | Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of breaking an impasse, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called "med/arb." | ||
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==Unbundling Dispute Resolution Processes== | ==Unbundling Dispute Resolution Processes== | ||
The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things which seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives. | |||
At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement or by court order, and temporary arrangements get worked about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed. | |||
As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute. | |||
It seems obvious to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues which need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off. | |||
Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference. | |||
==Formalizing a Settlement== | ==Formalizing a Settlement== | ||