Alternative Dispute Slideshare Presentation

 

What is ADR – alternative dispute resolution

• negotiation or settlement meeting / mediation/ mediation-arbitration / arbitration/ collaborative
• alternative to litigation
• s.9 (2) Divorce Act – duty to advise to negotiate and mediate
• all family lawyers use ADR/ spend most of my time negotiating
• negotiation is used every day
• usually a negotiated settlement results in a more satisfied client

BATNA

• -best alternative to a negotiated agreement/ always be aware/ sometimes it may be better to go to arbitration or commence a court application

NEGOTIATION

• direct discussions bw parties/ bw counsel/ counsel and parties at a meeting
• usually w/o prejudice / can happened at any time during litigation
• four way meeting – without prejudice – parties can negotiate wo fear that their discussions can be used against them in the future
• but if no agreement, can use the negotiation process to obtain information
• an agreement is reached when parties achieve their goals

• process of negotiation:
• -parties need to identify their goals and interests/ different than their positions or rights
• – goal is to meet interests for each person
• – to meet a goal need to generate options
• – if the options are not acceptable to the parties they have to compare the other parties proposal for resolution to his/her BATNA to determine if they can compromise
• – sometimes a person’s BATNA is better than what is being proposed through negotiation

• usually, 4 way meeting happens after disclosure is complete
• NFP statement prepared/ with back up docs/ high-light the differences in the NFP
• In a 4 way meeting start with less contentious issues or already agreed upon/ show parties that consensus can be reached / set a positive tone for the discussions

MEDITATION

• -use a neutral third party to facilitate negotiation/ no decision making power / the mediator assists the parties in voluntarily reaching a mutually acceptable settlement of the issues in dispute
• – parties can go with or without counsel
• -parties with counsel usually initiate mediation when they believe that they require a third party to facilitate discussion and assist in attempting to resolve the matter
• closed mediation – the parties agree to keep all issued discussed confidential
• parties usually chose closed mediation/ in a closed mediation people can speak more freely, with ideas and options without it impacting negatively on them in the future
• open mediation – good if you believe that the other side is truly unreasonable/ mediator can provide a report to court if the mediation fails
• some mediators do not act as evaluators – facilitators – they have no opinion as to the outcome of the mediation/ how the matter is to be resolved/ they are to act as a neutral party/ mediator is only interested in the dispute resolution process itself

ARBITRATION

• when parties go to Arbitration they are providing a third party (an impartial Arbitrator) with the authority to make a binding decision in the matter/ person acts as a judge
• under the FLA (s.59.3) parties cannot contract out of the right to appeal on a question of law under the Arbitration Act
• Arbitration Agreement can provide the right of appeal on questions of fact or mixed law and fact
• Parties need ILA bf sign the Arbitration agreement/ it must be reviewed carefully
• The Arbitration Act requires that in advance of the Arbitration that the parties are screened for violence and power imbalance (s.58 (e) Arbitration Act)

• MEDIATION/ ARBITRATION
• -med/arb is becoming more popular to resolve family law disputes
• – starts as mediation/ parties agree in advance that if the matter is not resolved at the mediation stage, the matter will progress to arbitration
• – arbitrator can be a new person to determine the issues or can use the same person to arbitrate as was the mediator
• – if use the same person – advantage is that there is an incentive to resolve the issue through mediation bf arbitration bc the same person is acting as the mediator and the arbitrator
• marchese v. marchese – Ont CA – parties agreed to med/arb.  Parties finished mediation/ husband did not want to go to arbitration/ husband went to court/ crt stayed his proceeding and stated that the issues must be determined at arbitration

COLLABORATIVE

• at the outset parties sign a Participation Agreement
• sets out the terms under which they participate in the negotiation process
• parties confirm that they will negotiate in good faith
• parties agree that if they are unable to resolve their differences, their lawyers have to resign

Don’t waste time and energy on trying to go through this process alone. Toronto divorce lawyers know the legal system and can help you navigate it properly. Toronto family law is not an easy task to tackle alone.