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When you’re navigating a family law matter, it can be challenging to figure out the right way to resolve it. Depending on the issue you’re dealing with and your relationship to the people involved, there are multiple routes you can choose to take. In Ontario, family law disputes can be resolved through various alternative dispute resolution (ADR) methods, including mediation, arbitration, and med-arb.
ADR methods are a great option for individuals who don’t wish to go to court to resolve their legal matter. They allow parties involved to avoid the time, stress, and costs associated with traditional litigation. Understanding which type of ADR method is right for you can make all the difference in your case. Our family lawyer, Paul Slan, breaks down the key differences between mediation, arbitration, and med-arb, and explains when med-arb might be the best option for your situation.
At Gelman & Associates, our dedicated Toronto family lawyers have experience with mediation, arbitration, med-arb, and more. If you have questions about a family law matter you’re dealing with, we can provide legal advice tailored to your needs. To schedule a consultation and speak with our team, contact us today.
What is Mediation & What is Arbitration?
Mediation and arbitration are two popular alternative dispute resolution methods utilized by many families looking to resolve their disputes outside of court. Depending on your circumstances, one may be more effective at resolving your conflict than the other.
Mediation is a voluntary process where parties engage with a neutral third party to help them come to an agreement about their dispute. The neutral third party is usually a qualified lawyer or social worker who will facilitate productive negotiation. During mediation, parties can be involved directly or can engage indirectly through their lawyers. There are two types of mediation:
- Closed Mediation: Closed mediation is almost always used for family law matters. It means that anything said or done by either party during mediation cannot be recorded and used in court if the mediation process is unsuccessful. This type of mediation is popular as parties are allowed to have an open dialogue with each other without worrying about the possibility of future consequences.
- Open Mediation: Although open mediation is possible, it is very rarely used due to privacy concerns. During open mediation, things that are said or done by either party do not remain private and may be used in court at any point in the future.
If parties fail to reach an agreement or settlement through mediation, they will need to explore other methods of dispute resolution.
Arbitration is a more formal method of dispute resolution that parties can undertake without actually going to court. It is governed under Ontario’s Arbitration Act, and is often described as “private court”. During arbitration, parties mutually agree on an arbitrator (usually a lawyer) to be appointed to their case, who will function like a judge. The process will proceed as it would in regular court, where each side will have an opportunity to present evidence and arguments in their favour.
The arbitration process might include:
- Testimony from witnesses
- Evidence provided under oath
- Cross-examination
- Legal submissions
- And more
The arbitrator appointed will make a final decision on the case after the process has been completed, called an arbitration award. An arbitration award is legally binding and will function the same as a legal court order.
Arbitration is faster than traditional litigation and allows parties to have more control over the legal process and timeline. However, it is usually more expensive than mediation. Whether you choose to pursue mediation or arbitration will depend on your relationship with the other party and your ability to collaboratively resolve the dispute in question.
What is Med-Arb?
Sometimes, parties dealing with a family law matter can choose to pursue a combination of mediation and arbitration. This is called med-arb, and is an increasingly popular hybrid model of dispute resolution in family law.
During med-arb, a mutually-selected, neutral third party will act as both a mediator and arbitrator. The process will generally begin with regular mediation to help parties attempt to reach a voluntary agreement. If mediation fails, the case will immediately transition into arbitration utilizing the same third party. Many people choose to pursue med-arb because they do not need to re-hire a new neutral third party and restart the legal process from scratch. This can save both time and money. You can choose to work with a new party as your arbitrator once mediation has failed, but this choice is ultimately up to you and your former partner.
Concerns do exist when it comes to med-arb. Namely, many believe that a mediator who immediately transitions into an arbitrator may be biased after their involvement in the failed mediation process. However, it is the responsibility of the neutral third party to “reset” when they switch roles. This is normally possible because mediation is based on negotiation, while arbitration is dependent on fact-based evidence.
When Should You Consider Med-Arb?
So, when should you consider med-arb as your dispute resolution method? Med-arb is an effective pathway for parties who want to try coming to a mutual agreement before they engage in more lengthy legal processes. While this first step may be effective for some disputes, med-arb also means that parties do not have to restart the process if mediation fails. This can act as a fail-safe, saving parties time and money in many cases. It’s important to note that each party must be comfortable with the same third party acting as both mediator and arbitrator throughout the process.
It should be noted that to participate in arbitration (and mediation), each party must be screened to ensure there is no power imbalance between them. In these cases, mediation and arbitration are not advisable, and you may choose to proceed directly to court.
Parties may not want to pursue med-arb when they believe there is a low chance that they will be able to resolve their dispute through mediation. In these cases, you can save more time by moving your case into formal arbitration right away.
Whether you decide to pursue mediation, arbitration, or med-arb, your lawyer will play an important part in the process. With their knowledge and years of legal experience, family lawyers can act as effective mediators and arbitrators depending on your situation. This is especially true when it comes to arbitration, due to its formal legal nature.
Thinking About Engaging in Med-Arb? Speak With Our Toronto Family Lawyers Today
Choosing between mediation, arbitration, or med-arb will depend on the unique circumstances of your situation. You may want to consider your individual goals, the level of conflict that exists, and the amount of flexibility you’re comfortable with. Regardless of the method you choose, working with an experienced family lawyer can help you navigate the process seamlessly.
At Gelman & Associates, our Toronto family lawyers guide clients through all forms of dispute resolution. Let us help you determine the most effective path forward for your family. To schedule a consultation with our legal team, contact us today.
