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There are several important legal issues that must be addressed and resolved by former spouses who are separating or planning to divorce. These include spousal support, child support, and division of property, among others. Couples who are planning to separate, or who are already in the process of doing so can make these decisions by going to court, or through the more informal process of alternative dispute resolution, also known as ADR.
The family lawyers at Arbesman Hamilton LLP are well-versed and very experienced in assisting clients through all forms of ADR. Where appropriate, we provide independent legal advice for people going through a mediation or alternative dispute resolution process. We can also review and advise on settlement agreements reached through mediation or ADR, and will represent clients at mediations, negotiations, and arbitrations if needed.
In family law, alternative dispute resolution, is an informal way to negotiate and settle outstanding issues between two separating parties. ADR is most effective where the parties are on relatively good terms with one another, and where their separation is unlikely to be contentious. ADR must be freely chosen by both former partners.
There are several reasons why alternative dispute resolution can be beneficial to some separating couples. Namely, ADR:
There are various types of alternative dispute resolution available in family law disputes. Obtaining advice and direction from a family lawyer before attempting ADR is always advisable.
Negotiation is the most informal type of ADR, and is often the first step many couples take during the separation process. During a negotiation, the exes meet and attempt to arrive at an agreement with respect to any outstanding issues. This can be done by the former partners on their own, or with the help of family lawyers (each party must receive independent legal advice from their own lawyer). Negotiation can take multiple meetings before all issues are resolved.
It is important to note that even if you and your ex have separated amicably and think that you can sort out issues on your own, it is still advisable to seek the assistance of a family lawyer to ensure your interests and legal rights are fully protected to avoid potential risks and pitfalls. Furthermore, once a written agreement is reached following a negotiation, it is strongly advised to have it reviewed by a family lawyer prior to signing.
ADR through mediation involves the services of a third-party mediator. Mediators assisting in family law disputes are often social workers, psychologists, or lawyers. The mediator helps the separating parties speak to and negotiate with one another. The mediator must be chosen and agreed to by both parties, which ensures he/she is fair and impartial. The mediator can offer suggestions on ways to solve any outstanding conflicts to help the parties come to a resolution. The mediator cannot offer legal advice (even if they are a lawyer). If either of the parties are unhappy with the mediation at any stage, the mediation can stop. If they are unhappy with the proposals that the mediator is putting forward, the mediation can also end. Likewise, if an agreement cannot be reached, the mediation will end. If settlement is not reached through mediation, the parties can attempt a different form of alternative dispute resolution, or the matter can proceed to court.
If you wish to engage in a mediation with your former spouse, it is advisable to consult with a knowledgeable family lawyer first. Each party must speak to their own lawyer and obtain independent legal advice. Consulting with a family lawyer can help you understand your legal rights and anticipate what to expect in a mediation. A family lawyer will accompany you to the mediation and help with the mediated negotiations.
If arbitration is chosen as a method of alternative dispute resolution, an arbitrator is engaged to resolve any outstanding conflict between the separating parties. In arbitration, a third-party arbitrator is hired by the separating spouses and both spouses are required to obtain independent legal advice. The arbitrator will make a binding decision on any outstanding issues that the parties place before him or her. Unlike mediation, once the arbitration begins, it must continue until a decision is made, and the parties must accept whatever decision the arbitrator imposes.
The skilled family lawyers at Arbesman Hamilton LLP regularly help clients resolve their family law issues through alternative dispute resolution. We can help you reach an amicable resolution with your former spouse fairly, cooperatively, and with less cost than through traditional litigation. Contact us online or at 416-481-5604 to book a consultation and discuss your options.
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