ALTERNATIVE DISPUTE RESOLUTION: Mediation and ArbitrationWhen couples, married or unmarried, cannot resolve matters flowing from their separation amongst themselves, they are left with two options: engaging in an alternative dispute resolution process or litigating the matter through the Courts.
Many couples choose to opt out of the Court system for a multitude of reasons, including: cost, time and stress. These couples then find themselves in an alternative dispute resolution process of some sort. All settlement negotiations and discussions are on “without prejudice” basis, which means that they cannot be relied upon by either party in Court should they not reach a settlement. Below is a breakdown of a few common dispute resolution processes:
4-Way Settlement Meetings
A 4-way settlement meeting is a meeting between the parties and their respective Family Lawyers to negotiate the terms of an agreement outlining all the outstanding issues between them further to their separation.
In order for this process to be productive, parties would need to voluntarily exchange full financial disclosure.
The most popular process of this kind is mediation. Mediation involves a trained, impartial and neutral third-party mediator who assists both parties in reaching a mutually beneficial resolution. This individual’s role is to guide you and your spouse through an interest-based process, manage effective communication and assist you both in reaching a resolution. Both parties must consent to this process at the outset and must consent to the chosen Mediator.
Mediation can either be lawyer-assisted or attended only by the parties. Although you have the option of engaging in this process without counsel, it is highly advisable to have a competent Family Lawyer represent your interest. The role of your Lawyer in mediation is to protect your interest and to ensure that you are not being bullied/coerced into an unfair/disadvantageous outcome. Your Lawyer’s job here is to ensure that you reach a fair resolution without having to sacrifice too much of your legal rights.
Arbitration can be described as a private trial in a boardroom setting. The Arbitrator is hired by the parties as an independent third party to act as their Judge in this private trial. After each party has had the chance to present their evidence, arguments and case, the Arbitrator renders a legally binding decision on the parties. Just like at the conclusion of a trial in Court, this decision is final, binding and enforceable. Either party may attempt to appeal this decision in Court; however, Courts have historically given tremendous amounts of deference to Arbitrators. Any issue can be judicially resolved in Arbitration, including parenting, support and property division. Consent by the parties to engage in this process must be obtained at the outset.
Mediation-Arbitration, commonly referred to as “Med-Arb”, is a hybrid process where the parties first try to resolve their issues amicably through Mediation. If they cannot reach a resolution at the Mediation stage, an Arbitration hearing is conducted, and the parties are bound by the decision made. In this hybrid option, the parties agree to refer their matter to an individual who is trained as a Mediator and Arbitrator. This neutral third party has two hats to use and will put either hat on depending on the stage of the proceeding.
If a mutually acceptable agreement is reached through any of the foregoing alternative dispute resolution processes, then it is highly advisable for the parties to enter into a Separation Agreement drafted by an experienced Family Lawyer to solidify the terms of their agreement. If an agreement is not reached, both parties are free to pursue another form of alternative dispute resolution, or engage in litigation.
Contact us at Noori Law to help you navigate through these processes from start to finish.