How family law litigators incorporate mediation into their process
It is possible to get through a separation or a divorce while staying out of court. There are ways to resolve family law disputes without costly litigation and a lengthy public trial.
Experienced family law litigators integrate important tools such as mediation, arbitration and negotiation in their practice. In particular, mediation can be an extremely effective and cost efficient way to reach a settlement. If you are looking for happy ways to solve your family law issues, this article is for you.
Arbitration vs. litigation vs. mediation
Family lawyers are often asked about the differences between litigation, mediation and arbitration. All are forms of dispute resolution but litigation is the most formal of the three. It is an adversarial process in which the parties to the dispute ask a Judge in court to resolve the dispute. Detailed rules of court and procedure must be followed throughout the process. The Judge hearing the case will weigh the evidence presented at trial and make an order based in the law that is binding on all the parties. In litigated family law cases, judges are required to follow the law and apply it to the facts regardless of what either of the parties thinks the outcome should be.
In contrast, mediation and arbitration are considered alternative dispute resolution or “ADR” for short. Both are less formal processes than litigation. Generally speaking, mediation and arbitration are considered to be quicker processes. The “ADR” processes are more affordable than litigation; however, there is no guarantee of a resolution at the end of mediation. There will be a resolution at the end of arbitration. The general viewpoint of our clients who have participated in litigation and mediation, have found mediation to be a less stressful and more satisfying dispute resolution process than court. Mediation allows the parties to find creative ways to resolve their issues and each spouse has the ability to participate in providing ideas and input into solving their outstanding family law issue(s).
Key differences between mediation and arbitration
The goal of mediation is for the parties to the dispute (e.g., you and your former spouse) to reach a resolution with the guidance of a neutral third party called a mediator. The mediator’s job is to bring the parties together to negotiate and try to reach a consensus on the issues in dispute such as parenting time, division of property and debts, child support, spousal support, etc. A mediator is impartial and can not give legal advice to either party. This is why spouses often bring their own lawyer to the mediation so they can consult with their lawyer as the mediation unfolds. The mediator does not have the power to decide the issues in dispute. Successful mediation ends with a mutually agreeable resolution that is put in writing and signed by all the parties. The written agreement is binding and can be enforced by the courts.
Arbitration falls somewhere between mediation and litigation. The process is like an informal trial held outside of court. A neutral third party called an arbitrator hears evidence and arguments from both sides to the dispute. Both sides are usually represented by lawyers. The arbitrator then makes a decision that is binding on the parties and enforceable by the courts if not followed. The rules and procedure for an arbitration are less rigid than in a courtroom and the arbitrator has more leeway than a judge in reaching a decision.
Divorce mediation vs. litigation
We talked about the differences between litigation and mediation; now lets talk about the reasons why mediation may get you the happy divorce you want:
- Control. In mediation, you control the outcome. You and your spouse negotiate with the help of the mediator to reach a settlement tailored to your family’s unique needs and interests. Whereas if litigation is necessary, the judge controls the outcome. You present your case in court and it is up to the judge to decide the outcome.
- Privacy. Mediation takes place in a private setting. Litigation takes place in a courthouse that is open to the public.
- Cost. Mediation is usually less expensive than litigation.
- Time. The mediation process is generally faster than litigation.
- Flexibility. Mediated agreements can incorporate creative solutions while court orders must follow law and legal precedents.
- Relationships. Mediation can help preserve or repair the relationship between you and your spouse. The process requires you to work together to make decisions about how you will move forward in a productive, respectful manner. This can help improve communication down the road. On the other hand, litigation is quite contentious and adversarial. It typically takes a high emotional toll and can be quite damaging to personal and parental relationships.
Arbitration vs. litigation vs mediation: Which is right for you?
A happy divorce is achievable if you choose the right strategy and have trusted legal advice. Valerie M. Little has been a lawyer for over 30 years. She specializes in the area of family law and divorce. She is also a certified family law mediator. She has decades of experience inside and outside the courtroom. She is especially skilled in resolving family disputes outside the courtroom. Ms. Little can use her negotiation and mediation skills to resolve disputes and help you reach a resolution. Even difficult issues can be resolved without going to court when the main goal is to come to a settlement that is fair and reasonable for both spouses.
Her office is located in New Westminster and she has assisted clients in Burnaby, Coquitlam, Langley, Delta, Maple Ridge, Chilliwack, Vancouver, North Vancouver, West Vancouver and Whistler. Call Valerie M. Little today at 604-526-3333 to discuss how to get your “Happy Divorce.”