Exploring Your Options in Dispute Resolution: Family Arbitration

Family arbitration is a very different process from mediation, and yet they are often confused. Arbitration is a process whereby the parties present their version of the story before a privately-retained arbitrator, often a senior family lawyer, who hears the evidence, applies the law and makes a binding decision. To explore other ADR process options, read our recent blog posts.


Arbitration is therefore, more like court than it is like mediation. However:

  • Unlike court, which is open to the public, arbitration is confidential; the parties agree that the record of the arbitration will be kept in confidence unless there is an appeal
  • Unlike court, arbitration is not free. The parties pay the arbitrator they choose. Arbitration can be expensive, depending on how complex the matter is, how cooperative the parties are and how experienced the arbitrator is.
  • Unlike court, parties in arbitration can limit their appeal rights. Some appeal rights must be available, but parties can restrict their right to appeal.
  • Unlike court, parties coming before an arbitrator must first be assessed for suitability. This is the same screening process as that done by mediators. The purpose is the same: to identify, assess and manage power imbalances that could negatively affect either party in a private FDR process, in particular any risk that a party, a professional or a child might be harmed before or during the arbitration process; to ensure that parties are participating voluntarily and to assess whether they are suitable candidates for a private and expensive process. (See Arbitration Act  & Regulations  and FDRIO Standards of Practice for more information).
  • Arbitration must follow the basic rules of due process, but it can be much less formal than court. Parties are free to design a process that best meets their needs, subject to certain requirements imposed by the Arbitration Act and the Family Law Act.
  • Depending on the jurisdiction , arbitration can provide parties with a resolution much faster than going to court.

Arbitration is a popular process in some jurisdictions. for some cases, such as highly complex financial matters that require specific expertise. Arbitration can be a very fair and effective process. However, as with all processes, it is critical that candidates for family arbitration are carefully screened before they commit to the process as,  arbitration can be prejudicial to parties who are not suitable candidates, particularly where there are significant unknown power imbalances.


For more information about the arbitration process, visit the resources below:

ADR Institute of Ontario 

Ministry of the Attorney General

Justice Canada

 

 

 

 

 

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Exploring Your Options in Dispute Resolution: Mediation

 

Mediation is a voluntary process of negotiation that is led by a neutral expert in conflict resolution skills. Family mediators are often family lawyers or mental health professionals themselves. Mediators generally do not provide solutions, and unless lawyers attend, mediation does not result in a signed , binding agreement. Rather, parties attend mediation to freely discuss the problems they seek to resolve, what they may need to be able to do that and the range of possible solutions.


Mediators do the following:

  • identify those cases that are suitable for mediation, through a process of confidential intake meetings with each person (screening)
  • support clients to make the choice to mediate by assessing the supports they will each need in order to participate
  • help parties assess their own safety risks and direct them to appropriate safety planning where risk is identified and assessed
  • help parties choose to use another process that is better suited for them, where appropriate
  • help parties access counselling, resources for their children and other resources to support the family
  • help parties access legal and other advice needed to fully participate in mediation
  • design a negotiation process that meets the procedural needs of each person
  • consider how the interests and views of children can be appropriately identified and addressed
  • help parties obtain the financial and other information they need to engage in fair and balanced negotiation
  • conduct a fair, balanced and informed negotiation process that is designed to be as safe as possible, emotionally, physically and legally for both parties and the children
  • help parties negotiate so that they can identify their respective interests and the range of possible solutions to the problems they seek to resolve
  • assist parties in deciding whether to settle if so, on what terms.

Mediation can be “open” or “closed”. Most mediators offer only closed mediation, meaning its is confidential and without prejudice. this means that the parties and the mediator agree that they will:

  1. keep all communications confidential, subject to the standard exceptions of information suggesting that a child or third party is at risk of harm , or a court order to disclose; and
  2. that neither party can report back to the court about any offer made during mediation. all proposals made in mediation are made without prejudice to that person’s position in court.

As such, a mediator providing closed mediation may only report back to the court about the terms of a settlement. everything else remains confidential. the purpose of closed mediation is to provide a ‘safe place for difficult conversations,’ and to empower parties to feel free to explore ideas and proposals without fear of looking bad or being prejudiced in their communities or in court.

Sometimes, parties seek open mediation , which can have two different meanings, which can be confusing. Under the Family Law Rules, “open mediation” merely means that the mediator may report back to the court on all of the issues that came to mediation, which settled (and on what terms) and which did not. This is a limited form of ‘open’ mediation.

However, in private practice, some mediators offer a broader form of open mediation, where the parties can agree on what they want the mediator to be able to disclose to a judge, arbitrator or assessor. in such cases, it falls to the parties to define the scope of information that will remain confidential and what can be reported. Open mediation is more complicated in many ways and parties and mediators need to have a full discussion about the possible implications of an open mediation process, including what information may be disclosed, when and how, and how the mediator will be paid for their time.


Additional Sources

Ten Tips for Lawyers

OAFM (Ontario Association of Family Mediation)
www.oafm.on.ca

ADR Institute of Canada, Inc.
www.amic.org

ADR Institute of Ontario, Inc.
www.adrontario.ca

 

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Explore Your Options in Dispute Resolution

With so many options, how does one choose the best dispute resolution process?

This blog series will attempt to identify and define as many of the options as possible. This week’s focus will be on the Do-it-Yourself  option.


The “SRL” (self-represented litigant) movement has grown in the past years, largely due to the growing sense that the legal system, and particularly the use of family lawyers, has become inaccessible to many. Dr. Julie Macfarlane of the University of Windsor has spearheaded a public movement to draw attention to the hardships of the self-represented. This has highlighted the challenges of acting for yourself during a separation or divorce proceeding or negotiation. There are  many resources that are available to assist those who are navigating a separation or divorce without legal assistance. Courts are increasingly responsive to the needs of the unrepresented as well, as are governments in their funding choices. Some of the resources include:

Family Law Information Centres

FLICs are available in all Ontario courthouses. FLICS, as they are known, employ court staff and information officers to help parties complete forms, access legal advice, and information, find useful services and understand their dispute resolution options.For more information, follow this link.

Mandatory Information Programmes

Everyone in Ontario who has started a family court action, or is served with one, must attend an information programme but these sessions are open to anyone interested, whether they are in court or not. Presenters cover the wide range of services available to those experiencing separation, including out of court processes like mediation and collaborative negotiation; and they also help prepare parties for what to expect during a court process. Visit this page for more detailed information.

Free and subsidized family mediation

In all Ontario courts, same-day family mediation is free for anyone in court that day. And for anyone in Ontario, whether they have a court case or not,  family mediation is subsidized, often extensively so, for anyone who wishes to use the service. For more information, see the Ministry of the Attorney General’s website and our video here (link to HL video)

Access to advice and duty counsel

All courts have on-staff legal aid lawyers who provide free legal advice.There are income caps, and also limits on the kinds of legal advice such lawyers may provide. For more information, read this guide.

Family court support workers

The Ontario government funds supportive services in all courts for victims of domestic violence and abuse. Such services can help victims access legal advice, counselling, and other assistance. For more information, visit the Ministry of the Attorney General’s website.

Legal Aid Family Mediation Advice and Separation Agreement Certificates

Legal Aid Ontario also funds up to 6hours of legal advice for people wanting to work with a mediator and 10 hours of legal advice parties working with lawyers to negotiate a separation agreement, again subject to income requirements. For more information, visit legalaid.on.ca

Office of the Children’s Lawyer (OCL):

Under the International Convention on the Rights of the Child, to which Canada is a signatory, children have the right to an age-appropriate role in the resolution of matters that affect them The OCL exists to represent the rights of children in their parents’ litigation, and costs nothing. For more information, read this page about the OCL.

Dispute Resolution Officers:

In many courts, senior members of the family law bar act as court-appointed officers to help parties resolve certain disputes. For more information, follow this link to the Justice Canada website.

Do-it-yourself guides

There are many guides, books, and online resources to help people navigating their own divorce or separation agreement. One such resource is mysupportcalculator.ca, which helps parties assess their child and spousal support rights and obligations. All such do-it-yourself resources have limits and are generally not considered a reliable substitute for legal advice.

For more information please refer to the following resources:

Read Steps to a Family Law Case from CLEO (Community Legal Education Ontario)

Watch Divorce and Separation: Where to Start from Justice Canada

 

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Professionalism in an Adversarial Legal World

Adversarial - HL

As a mediator, mediation and negotiation trainer, and provider of court-connected dispute resolution services, issues of professionalism and professional ethics arise often in my work.

Although professionalism cross all legal and dispute resolution cultures and contexts, they may arise more often in the family law context, where the drivers of conflict are often personal and historical. Lawyers, dispute resolution professionals and service providers can be drawn into the emotionality and values-based conflicts that tend to dominate much of our work.

Deanne Sowter, research fellow at the Winkler Institute for Dispute Resolution, recently conducted a series of round-table discussions (in which I participated) that have resulted in an excellent series of posts on the topic. She finds that, although different FDR professionals are driven by different procedural norms, which in turn define their understandings of legal and professional ethics, there is a consistent acknowledgment that “family law ADR requires a higher ethical standard.”

The first step is for each of us to understand our own personal moral code, because that is the compass by which we will interpret the various Rules and Standards of Professional Conduct that guide us. For example, I recently helped draft the Standards of Practice for FDR Professionals for Ontario’s Family Dispute Resolution Institute of Ontario. In crafting those standards, there is no question that the values of our drafting team informed our work.

The legal profession has earned a bad reputation for adversarial negotiation. Indeed, in the family law context, some research suggests that family lawyers were, at one time, considered more adversarial than other kinds of lawyers. With the growth in popularity and influence of the collaborative law movement, and the exponential increase in numbers of family lawyers taking mediation training, it is arguable that family lawyers are now the least adversarial of their kind. This is not necessarily a good thing.

The training we take, the processes we offer, our life experiences and our own personalities together determine our standards of ethics relating to negotiation. And, presumably, the mandate to “do no harm” guides us all, at an elementary level, in all our choices, including the manner in which we interpret the Law Society’s still-mandatory duty of zealous advocacy for our clients.

In the video, I suggest that adversarialism is not, in itself, an evil. Indeed, in order to do no harm, it is sometimes essential. Ethical advocacy requires an assessment of the appropriate approach for each case and each client, and understanding what Fisher and Ury coined as each client’s “BATNA” in their seminal work “Getting to Yes”. Sometimes, an adversarial approach is exactly what is required for effective advocacy for a client. Somehow, we have come to conflate “adversarial advocacy” with “unethical advocacy”.

It is true that many of the tactics used in adversarial, competitive bargaining can seem, and be, unethical, in that they are designed to take advantage of the other party, create misunderstandings, and rely on deception of varying degrees. But competitive negotiation need not be unethical if those engaging in it are direct and transparent about the approach they are taking and avoid deceptive tactics.

I do a lot of teaching in law schools, and have coached in and judged many a negotiation competition. I find that today’s law students understand interest-based negation quite well; but they are distinctly uncomfortable with competitive bargaining, even when the facts suggest that it is the most appropriate approach for their client. It seems to me that we need to discuss these ideas much more with our students to help them understand there is a difference between adversarialism and unethical conduct.

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Safety Planning in Mediation: Part 3

The steps that family/collaborative lawyers, mediators and arbitrators can take, based on informed screening to enhance client safety are explained in part 3 of this blog series. Read more about safety planning in high-risk family law cases in Part 1 and Part 2 of the series.


21. Discuss with clients the reasons for the instructions or settlement positions they give. a client may be prepared to settle for an amount that you think is unreasonable because that is what they believe will keep them safe.

22. Always take very seriously client perceptions of danger. Research shows that a client’s fear of being killed is a reliable predictor of his or her murder.

23. Know the steps to take and referrals to make if a client hints at suicidal thoughts or plans. have a resource sheet to provide to clients who are suicidal, including referrals to local agencies. Take client disclosures of suicidal thoughts or acts very seriously. take client disclosures of the other party;’s suicidal thoughts, threats or acts very seriously.

24. Know your obligations under the Rules of Professional Conduct to report any information suggesting that a person is at risk of imminent harm. (Rule 3.3-3 of the Amended Rules of Professional Conduct.)

25. Know your obligations as a mediator, arbitrator or PC under s.72 of the Child and Family Services Act to report a child at risk of harm.

26. Take appropriate steps to keep yourself safe. there are too many cases where family lawyers, mediators, and their clients have been harmed or killed and where little or no screening/safety planning was done.

27. Pay attention to and take seriously the fears, intuitions and instincts of family and friends.

28. Support both parties. If you have a concern that a party is depressed, address that concern in a supportive and positive way and seek undertaking that clients will obtain counseling and other supports. Design your process with the safety and well-being of both parties and their children in mind and do not proceed until you are satisfied that your and/or your client’s concerns have been appropriately addressed.

29. Educate clients about the harmful impact that adversarial court processes can have. When they are providing instructions to take procedural steps, ensure that you have helped them contemplate, identify and assess risks. Ask clients to consider and share with you their safety plan for the most dangerous times, including when clients are retaining counsel, having lawyer meetings, serving proceedings, four-way meetings, meditation, an arbitration hearing and the time leading up to and immediately following a court hearing.


This article is excerpted from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” by Hilary Linton

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Safety Planning in Family Law : Part 2

The ways in which family negotiations are done is in the midst of a major shift. Family law professionals must be prepared to use a variety of tools to ensure a safe and equitable process. Part 2 of this blog series suggests more tips for safety planning in high-risk cases.


11.Ensure that the confidentiality of safety disclosures, in all processes, will be respected by the process and the person providing the process. If confidentiality of disclosures of fear, risk, violence, etc., is not maintained, clients and children could be put at risk of harm. Ensure that any mediator, parenting coordinator and mediator-arbitrator follows best practices in screening, confidentiality and safety planning.

12.Be familiar with basic safety planning guides. The services in your community for abused men and women will have safety planning resources. All family law professionals should have copies of such resources in their offices and available to clients. One excellent general resource is “Safety Planning Across Culture and Community”, published by Ending Violence Association of BC. https://www.endinqviolence.orq/files/uploads/ure and Community Manual
EVA BC Dec 9 2013.pdf

13.Be familiar with the many risk assessment resources available to victims of violence, to help them (and their lawyers) better understand the potential risk they (and their families, and/or their spouses) may be facing. For example, www.dangerassessment.org.

14.Understand different types of violence, how to identify each, and what the implications are of such differentiated assessments. The article by Joan Kelly and Michael Johnson is an excellent resource for this purpose.

15.Be familiar with the various screening tools including their limitations.

16.Secure a working relationship with the Family Court Support Workers in your jurisdiction. Know when to refer a client or prospective client for support or counselling before, during and after a family dispute resolution process.

17.Use the court connected onsite mediators whenever possible to meet with and screen clients where there are any concerns- Use the resources in the Family Law Information Centres in all courts, including the knowledgeable Information and Referral Coordinators.

18.Understand the link between violations (however minor) of bail terms (however seemingly minor the assault) and risk of escalated assault or murder, and have a working relationship with a good criminal lawyer to whom victim clients can be referred for advice about violations of bail and restraining orders.

19.Be familiar with the resources to support men, particularly if the man appear depressed, isolated, unable to take responsibility, is blaming and critical and unsupported.

20.Discuss your risk assessment directly with the client. If you are mediator, mediator-arbitrator or parenting coordinator, discuss your concerns for each party with each party, ensuring that you maintain the confidentiality of all that they both told you and yet are still supportive of the needs and concerns that each disclosed to you in confidence. Help clients better assess their own risks and better engage in their own safety planning.


This article is excerpted from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” by Hilary Linton

 

 

 

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