Mediation is the first step in the family mediation and arbitration process. The mediator does not take sides, nor does he or she make decisions for you. A mediator simply helps you come to a fair agreement regarding time sharing, spousal support, child support and property division. Before you mediate, you will need to share your financial information with each other. Your lawyer will give you a financial statement court form to fill out, as will your spouse’s lawyer.
While you do not need your lawyer present for mediation, it is recommended that you do have your lawyer present. Based on the information you provide, the mediator then makes suggestions as to the elements of separation or divorce. If you do come to an agreement, your lawyers will draft a settlement agreement. If you cannot come to an agreement on any or all of the elements of the divorce, you proceed to arbitration.
The arbitrator could be the same person who mediated your issues or you and your spouse may elect to use a different person for the arbitrator. Unlike a mediator who may or may not be trained in family law, the arbitrator is fully trained in family law. Unlike mediation, where you have a choice of having your lawyer present, you must have your lawyer present during arbitration.
An arbitrator listens to both sides and then applies provincial laws to your specific situation. Once the arbitrator makes his or her decision, which is considered final and binding, you will receive a family arbitration award. If you do not agree with the arbitrator’s award, you can appeal the award to the court.
Alternative dispute resolution is an umbrella term that is used to describe the options available to an individual that helps him/her avoid the court system during any dispute, particularly separation or divorce. ADR can involve negotiation, mediation and/or arbitration or even a combination of all three.
ADR is often quicker and less costly than going to court to settle a dispute. In Canada, a negotiated resolution is always preferred as this means that both parties are in agreement and ready to move forward. If more discussion is needed and more complex issues need addressing, then mediation is the next step. If you cannot come to an agreement during the mediation process, you would like then move to the next step, which is arbitration.
Remember that in mediation, the mediator does not create an order. He or she simply facilitates an agreement between the spouses. In arbitration, the arbitrator listens to both sides and then, using Canadian law and provincial law, creates an order that both parties must abide by.
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