Going through a separation or divorce can be an incredibly difficult and emotional time. The legal process of dissolving a marriage can be daunting, expensive, and lengthy if the case ends up in court litigation. However, separating couples in Ontario have alternatives beyond traditional court proceedings. There are several alternative dispute resolution (ADR) options available (such as family mediation, arbitration, and Rapid Resolution – the one-day solution) to help spouses resolve separation and divorce-related matters in a more efficient, affordable, and amicable manner.
In this article, we will explore the ADR processes of family mediation, family arbitration, and Rapid Resolution – the one-day solution. We will then analyze how these options compare and contrast on key factors like the decision-making approach, binding vs. non-binding outcomes, timeline, and cost. Our goal is to provide separating or divorcing couples with information to thoughtfully consider the ADR choices available before embarking on potentially costly, lengthy and stressful court litigation.
The Family Mediation Process
Family mediation involves a neutral third-party mediator facilitating communication and negotiation between the disputing spouses. The family mediator helps identify issues, interests, and options but does not make any decisions. It is up to the couple to voluntarily reach agreements.
The family mediation process typically involves joint sessions where everyone communicates openly, as well as private caucuses where the family mediator speaks to each party separately. Multiple sessions may be needed depending on the complexity of the situation. However, in a high proportion of the cases which we mediate, we are able to reach agreement in a single session on the disputed family law issues such as parenting decision-making, parenting schedules, property division, child support, and spousal support.
One of the most significant benefits of family mediation is that it allows solutions to be crafted collaboratively and creatively, taking into account each spouse’s unique needs and priorities.
The Family Arbitration Process
Family arbitration is a more adjudicative process compared to family mediation, with the family arbitrator acting as a private judge who makes the final binding decisions regarding disputed family law issues. Family arbitration follows a more structured process resembling court litigation, with each party (or more typically, their respective legal counsel) presenting evidence and arguments to support their position.
The arbitration hearing and decision process may take different forms and may include written or oral evidence given under oath. At the end of the family arbitration hearing, a binding arbitral decision or award is made, which can be appealed on grounds agreed upon by the parties in their arbitration agreement.
Family arbitration can resolve the same matters as those which can be addressed through family mediation but is binding on the parties (subject to appeal) which makes it less flexible than family mediation. However, it is a practical alternative to court proceedings if couples cannot resolve their disputed issues through family mediation as the process is tailored more easily and is far more flexible than a court process.
What is Rapid Resolution – the One Day Solution?
Rapid Resolution aims to provide a quicker and more cost-effective dispute resolution for separating and divorcing couples. Rapid Resolution combines both the mediation and arbitration processes into an expedited one-day timeframe.
In this process, the parties are screened for intimate partner imbalances/domestic violence to ensure the process is safe. With each party receiving independent legal advice, they agree to the issues which will be resolved in the process and that each party completely accepts the financial and other relevant disclosure exchange and that there is no disclosure outstanding. Evidence related to the issues in dispute is exchanged well in advance of the process day and if any questions or additional information is needed, it is requested from the parties. By the process day, all relevant information is available to facilitate the parties’ agreement or to make a decision, if necessary.
The spouses start with mediation, striving to communicate openly and reach consensus on as many issues as possible. Then on the same day, any unsettled matters proceed to be directly addressed in an arbitration hearing, in respect of which, as arbitrator, a prompt binding decision (subject to usual appeal rights) is rendered.
By integrating both ADR processes in immediate succession, Rapid Resolution provides spouses with certainty of quicker closure on disputed issues compared to family mediation or family arbitration alone.
Comparing the Family Mediation, Family Arbitration and Rapid Resolution
There are some key differences between the dispute resolution approaches taken in family mediation, family arbitration, and Rapid Resolution:
Family Mediator vs. Family Arbitrator Role
- The family mediator is a neutral facilitator who does not decide outcomes. The mediator’s role is guiding effective communication, helping parties identify interests and options for a mutual settlement.
- The family arbitrator serves as decision-maker, weighing evidence and arguments to render a binding judgment on the separation and divorce-related matter, similar to a judge.
Non-Binding vs. Binding Decisions
- Agreements reached in family mediation are voluntarily established by the parties themselves. Contracts formalizing the agreements must still be drawn up and duly entered into for the agreement to be binding.
- Family arbitration produces a legally enforceable, court-admissible binding decision right from the arbitrator. Appeal options exist.
- Rapid Resolution utilizes binding arbitration as the final step (subject to limited appeal rights), after the initial non-binding mediation.
Flexible Interests vs. Structured Rights Based Process
- In family mediation, there is procedural flexibility to have open-ended conversations and explore creative solutions that reconcile each spouse’s interests.
- Family arbitration and court litigation focus more on each person’s legal rights within the marriage and follow stricter evidence and submission guidelines.
Preserves Relationships vs. Adversarial
- Family mediation encourages mutual understanding and respectfully maintaining relationships, which can be beneficial when co-parenting children.
- The binding judgment nature of family arbitration promotes a more adversarial dynamic, with spouses opposing one another in a court like process.
Key Factors to Consider in Choosing Between Family Mediation, Family Arbitration and Rapid Resolution
Here is a comparison overview of some of the key differentiating factors between family mediation, arbitration, and Rapid Resolution:
|Family Mediation||Family Arbitration||Rapid Resolution|
|Timeline||Weeks or months||Weeks or months||1-2 days|
As shown, Rapid Resolution offers the fastest timeline by far. Family mediation is the least expensive option that maintains a cooperative focus, but family arbitration or Rapid Resolution may provide greater closure through prompt binding decisions (subject to appeal rights).
There are certainly pros and cons to each method beyond just these factors. Couples will need to carefully weigh their priorities in choosing the most suitable dispute resolution approach for their unique situation.
Turning to ADR Before Pursuing Litigation
Ending a marriage is an enormously difficult transition that can feel overwhelming in every way. During this challenging time, divorcing and separating spouses deserve every support to resolve matters in a peaceful, fair, and efficient way so they can start healing and rebuilding. Alternative dispute resolution options like family mediation, arbitration, and Rapid Resolution offer paths that are more empowering than potentially emotionally and financially draining and confrontational court battles. By promoting understanding, thoughtful dialogue, and impartial guidance, ADR can help couples undertake separation and divorce with dignity and respect. With wisdom and compassion, we can find the way forward.
Frequently Asked Questions About Family Mediation, Family Arbitration and Rapid Resolution
What are the grounds to appeal a family arbitration award?
Family arbitration decisions can be appealed on the same grounds as a decision made by a judge. The threshold to overturn decisions is fairly high.
Are family mediation, family arbitration and Rapid Resolution always confidential?
Generally, yes, family mediation, arbitration and Rapid Resolution confidentiality is protected. But there are a few exceptions if there is threat of harm revealed of if either party appeals.
When should separating or divorcing couples work with lawyers?
Legal advice is recommended before, during, and after ADR to understand your rights and obligations.
How to choose between family mediation, family arbitration, or Rapid Resolution?
Factors like the need for binding decisions, costs, timeliness, and cooperation levels help determine which option works best for your particular circumstances.
How is the mediator or arbitrator for family mediation or family arbitration selected?
Couples can mutually select a family mediator or arbitrator. The mediator or arbitrator should be neutral, experienced, and qualified.
Who pays the family mediator’s/arbitrator’s fees in family mediation or family arbitration?
Family mediator/arbitrator fees are typically split evenly between the parties, unless agreed otherwise. The total costs are generally far less than the total cost of the traditional litigation process.
Can any family law issues be subject to family mediation, family arbitration or Rapid Resolution or just some issues?
Virtually any legal issues relating to separation or divorce can be the subject of family mediation, family arbitration or Rapid Resolution including parenting decision-making, parenting schedules, property division, child support and spousal support.
What training and qualifications must a family mediator or family arbitrator have?
Specific qualifications differ by jurisdiction, but often include legal training, family mediation or family arbitration credentials, and substantive experience with family law matters. For further particulars on how to choose the right family mediator (or arbitrator), please see my article How to Choose the Right Family Mediator.
Is the arbitration award made public?
Unlike court cases, family arbitration is a private process, so details of proceedings and award details are kept confidential unless required by law, unless either party appeals.
How much preparation is needed for Rapid Resolution?
Prior to commencing Rapid Resolution, the parties should complete their necessary disclosure and exchange of information (particularly financial disclosure) and exchange briefs of their respective submissions regarding the issues in dispute. Prior to the commencement of the Rapid Resolution proceeding, the parties agree in writing that there are no outstanding disclosure issues.
When might a longer family arbitration timeline be preferable to Rapid Resolution?
If parties need more time to present complex evidence or want fuller discovery and arguments, traditional arbitration may suit some cases better than a One Day Solution offered by Rapid Resolution.
The following are resources for alternative dispute resolution options for separating and divorcing couples:
- Department of Justice Canada – Dispute Resolution Reference Guide: Provides an overview of ADR options in Canada, including mediation, arbitration, etc.
- Ministry of the Attorney General (Ontario) – Family Mediation: Outlines family mediation and its benefits in Ontario.
- ADR Institute of Ontario: Non-profit organization providing resources about ADR and finding qualified mediators and arbitrators in Ontario.
- Ontario Association for Family Mediation: Promotes and develops standards for family mediation and mediator training in the province.
- Family Dispute Resolution Institute of Ontario: Develops standards and qualifications for family dispute resolution services like mediation, arbitration in Ontario.
For further information regarding family mediation, see our Family Mediation: Resolving Family Law Disputes – An Essential Guide.