Ways to Resolve
There are different ways to resolve a family law dispute.
You have options when determining how best to resolve your situation: negotiation, mediation, arbitration or court action.
Not all options are suitable for every situation. After meeting with you at your initial consultation, we will explain the different approaches and help guide you towards the option that makes the most sense for your situation.
Generally each party will retain their own lawyer and with the lawyers the parties will work together to arrive at a written agreement. Negotiation is the least formal of all options available to family law clients. This method allows the parties to remain actively involved in the resolution process. Negotiation is only an option if both parties are willing to work together in good faith to try to resolve their situation.
If negotiation fails or is not an option, then the parties will either need to mediate, arbitrate or begin a court action in order to resolve their dispute.
Mediation is only available as an option if the parties agree to use this method of dispute resolution. Through mediation, the parties will hire a mediator to assist them in trying to reach a settlement, which will then be incorporated into a separation agreement.
A mediator can be a lawyer, social worker or psychologist. The type of mediator that is hired will depend on the nature of the issue that the parties are trying to resolve. If the parties are unable to agree upon a parenting plan for the children, then often the mediator will be someone who is also a qualified social worker or psychologist. Most other types of disputes will generally involve hiring a mediator who is also a family law lawyer. This type of mediator is normally trained to handle all types of family law disputes, including custody/access (parenting plan), property division and support.
If mediation fails, then the parties will either need to resolve their dispute by arbitration or by beginning a court action.
Arbitration is used as an alternative to the court process and can only be used if the parties agree to this process. In selecting arbitration the parties have determined that they cannot resolve the issues between themselves, either through negotiation or mediation, and that they need a decision imposed upon them. The parties will no longer play an active role in how their situation is resolved. That decision will be made by the arbitrator. The parties will have an opportunity to put forward their case to the arbitrator and the arbitrator will then make a decision. The decision of the arbitrator is binding on the parties and can be enforced by the courts, if necessary.
The benefit of using an arbitrator as opposed to proceeding by court action is that the parties can select their arbitrator, thereby ensuring that the person has experience in their type of situation, and generally the arbitrator will decide the case much more quickly than it would be determined through the courts.
The court process is available to all types of disputes. A party does not need the consent of the other party to begin the court process. Generally, the court process will be used if negotiation and/or mediation are not reasonable options or if the parties were unsuccessful in resolving their dispute through other methods. By proceeding to court the parties are allowing a judge to decide for them how their situation will be resolved. A judge can make both temporary and final orders. The decision of the judge is binding on the parties.
Even after the court process has begun, if settlement appears to be a possibility, the parties can still try to negotiate a resolution or they may opt out of the court process and proceed to mediation/arbitration.