Alternative Dispute Resolution – How to Keep Matters out of Court
We often hear from our clients that they are unable to resolve their issues with their ex-spouse directly, but don’t want to deal with matters in Court. Whether it’s a matter of cost, privacy, or a desire to avoid the adversarial nature of Court proceedings, we are increasingly diverting matters out of Court into many forums which are described as “Alternative Dispute Resolution” or ADR. Some of the options for ADR include the following:
DRO (Dispute Resolution Officer Program) – This is one-hour meeting at the Courthouse with a volunteer lawyer to try and resolve issues of child support. The parties are asked to bring their financial disclosure. The volunteer lawyer will provide guidance on the law concerning child support. This is a mandatory program for all parties to attend before they can file a child support application in Court and is also available for parties on a voluntary basis.
EICC (Early Intervention Case Conference) – This is a relatively new program from the Court of King’s Bench that is for matters that are already in Court and are being adjourned to a Special Chambers Application. The Court (or the parties) may ask that before their Special Chambers Application is heard, that they attend at an EICC. This is a 1-hour appearance before a Judge which requires both parties to submit to the Court and exchange a settlement proposal, and then appear before a Judge in a Courtroom who will facilitate without prejudice settlement discussion and oftentimes give their opinion regarding what they would do if they were the one to hear the Special.
JDR (Judicial Dispute Resolution) – This is a confidential settlement conference led by a Judge. The parties will provide the Judge with a Brief in advance setting out the background facts, issues and their position, and then will meet with a Judge in an informal setting who will facilitate settlement discussion. If the parties can not reach a resolution, the Judge would then give their opinion as to what they would do if they were hearing the matter in Court. If the parties elect to have a Binding JDR, then the Judge will issue a binding decision on the issues that is non-appealable.
Mediation – This is an out-of-court process whereby the parties retain a lawyer who has been trained as a mediator to facilitate settlement discussions. Parties typically attend with their respective lawyers and the mediator acts as an objective third-party. Parties will have an opportunity to voice their concerns and position on issues and ultimately act as the decision-makers.
Arbitration – This is a form of private dispute resolution whereby the parties retain a lawyer who has been trained as an arbitrator to make a binding decision for them. The arbitration process can mirror the trial process in many ways, in that parties will attend with their lawyer, present evidence through witnesses or other means, and have their lawyers make submissions on their position. The arbitrator will hear the evidence and submissions and issue a binding award.
Mediation/Arbitration – This is a combination of the above two processes. The parties will sign a mediation/arbitration Agreement at the outset whereby they agree that they will attempt to resolve matters in mediation, however, should they be unable to do so on any issue, then the mediator will switch roles to an arbitrator and will make a binding decision.