Alternative Dispute Resolution (ADR) – Negotiation, Mediation, Mediation/Arbitration
Going to court is expensive, it takes a long time before parties see a judge and the process further divides families and can cause irreparable harm. Sometimes court is the only option, however, negotiations are a far more effective use of time and allocation of family resources.
Negotiation
Settlements can be reached through lawyer directed negotiations. Full and frank financial disclosure is vital to the process and prevents future variations. Effective negotiations require a thorough knowledge of the law, the facts, reasonableness, an understanding of the family dynamic, they allow for creativity and the parties can craft an agreement that benefits their family. This is an ideal way to settle matrimonial issues.
Mediation
If lawyer directed negotiations are not possible, mediation is a voluntary form of alternative dispute resolution and an effective way to resolve disputes. It is effective for many reasons:- It is cost effective
- It is faster than litigation
- The parties maintain control over the resolution
- It fosters cooperation which preserves the familial relationship
- It is generally not as adversarial as litigation
Mediation involves the guidance of a neutral third party, the mediator, in bridging the gap between the parties’ positions. The mediator is knowledgeable in the area of family law though he or she does not provide legal advice – this is the lawyer’s role and why an experienced family law lawyer is necessary before and during the mediation.
Sometimes there is no mediated agreement reached. The parties will then proceed to arbitration if mediation/arbitration is elected, if not, court is the next option.
Arbitration
Arbitration is the next step when mediation breaks down if mediation/arbitration is elected. The mediator becomes the arbitrator (the final decision maker) and arbitration is similar to a court hearing. The arbitrator assumes a judge-like role and after receiving and hearing all the evidence comes to a decision which is binding, reflected in an arbitral award and may be enforced by the court.
Skilled legal representation and reasonableness is key to the success of ADR and the preferred conflict resolution model of Nelson Family Law. ADR preserves relationships, resources and enhances communication during a tumultuous time which is important in every regard especially when children are involved.