Duhaime Law wishes to thank Professor Julien D. Payne, Q.C., LL.D., F.R.S.C., Faculty of Law, University of Ottawa, Canada, for this excellent article, © J. Payne 1997. Professor Payne conducts neutral evaluations (private pre-trials) and arbitrations in family law disputes.

Amicable divorce is the exception, not the rule.

In a perfect world, spouses who intend to divorce would sit down together in an attempt to deal with the consequences of their separation and divorce in a fair and practical manner.

All too often, however, separated and divorcing spouses cannot even talk to each other in a civilized manner.

So, how can we expect them to communicate in a rational and constructive way for the purpose of resolving the problems generated by their divorce?

Of course, if they have no assets and no children and neither is financially dependent upon the other, there is really very little to talk about. They can get a low cost uncontested divorce and deal with any emotional trauma as they see fit.

In most cases, divorce is not quite that simple.

There will be children who still need the love of both parents.

There may be substantial assets to divide, including spousal pensions.

There may also be an entitlement to spousal and child support.

Roger the LawyerSo how should divorcing spouses deal with these issues? Even sophisticated people need professional help. Prospective divorcees may need advice from a variety of professionals, including family and individual therapists, accountants, actuaries, business valuators, and lawyers.

In the typical divorce scenario where substantial assets are involved, each spouse should consult a separate lawyer - hopefully, both lawyers will be specialists in family law. The lawyers take instructions from their respective clients and will then attempt to negotiate a settlement of all disputed matters. All this takes time and money - even in those cases where there is no recourse to litigation.

But lawyers cannot always reach a settlement on behalf of their clients.

In a small number of cases, a full blown trial may materialize unless other options are examined. What are these other options? There are as many options as the parties and their lawyers can devise. Be creative! Three options of particular significance are (i) mediation; (ii) neutral evaluation; and (iii) arbitration.

Before engaging in protracted acrimonious litigation, divorcing spouses should speak to their lawyers about these and other alternative processes. They might also want to spend some time or money at their local public or university library or bookstore to see if they can find relevant information about so-called A.D.R. processes.

I shall briefly describe the above processes.

Mediation

Mediation badgeThe essence of mediation is that the family disputants are themselves responsible for determining the consequences of their divorce.

Self-determination with the aid of a skilled, impartial third party is the cornerstone of mediation.

The mediator must defuse conflict to a level where the spouses can communicate with each other. They can then identify and evaluate their options with a view to negotiating a fair settlement.

Mediation is neither medication nor meditation. It should not be confused with marriage counselling or family therapy. It does not provide diagnosis, treatment or a cure for family dysfunction. It is a pragmatic process designed to provide fair and practical solutions to the economic and parenting consequences of separation and divorce.

Some family mediators specialize in parenting disputes; others specialize in dealing with the economic consequences of divorce, namely property redistribution, spousal and child support.

A few engage in comprehensive mediation that covers both the parenting and economic consequences of divorce.

However, be warned!

Mediation is not a regulated profession. It is not a licensed or certified profession. Anyone can pass themselves off as a mediator.

Indeed, in some jurisdictions, for a modest annual fee, anyone can get an impressive membership certificate from a Mediation Association that looks rather like a certificate of competence and integrity.

Do not be misled!

Check out the credentials, if any, of your prospective mediator. What professional qualifications does he or she have? What mediation training has been undertaken? Who does he or she know who could provide a reference? Who do you know who could assess his or her competence and integrity? If you have recourse to mediation, take every step possible to find the best mediator in town. If he or she is unavailable, ask who they would recommend in their place.

Of course, finding the right mediator is only your first step. After that, it is up to you and your spouse to work hard at trying to find constructive solutions to your dispute. It is your joint responsibility and privilege. If the mediation is successful, you will derive the satisfaction of knowing that you and your spouse both made the input necessary to achieve a consensual resolution of your dispute. Life does go on but it is so much easier if you have had some say in the direction which yours follows.

Neutral Evaluation

The essence of neutral evaluation is that both spouses refer their disputes to an impartial third party who will hear each side of the story and evaluate the proposed solutions of each party. This is a summary process in which the third party neutral will be selected by the spouses, usually on the advice of their respective lawyers. The third party neutral will invite each side to summarize the facts and to set out their claims and will then give an opinion as to what he or she thinks might be an appropriate outcome. Assume, for example, that the lawyers who represent the spouses disagree about the right to, duration, or amount of spousal support. This issue might be resolved by judicial proceedings or by private arbitration. However, before going to such expense, the lawyers and clients could seek the opinion of a specialist in the field - perhaps a retired judge, a practising lawyer, or a professor who specializes in family law. The basic facts can be presented in writing or orally and the third party neutral should be required to provide a definitive response to the dispute. The spouses will then decide whether to accept or reject that opinion. In the latter case, they might contemplate litigation or arbitration.

Arbitration

Whereas mediation and neutral evaluation leave the decision making power in the hands of the disputants, arbitration involves a third party adjudicator whose decision is normally binding on the parties, and not merely advisory.

Arbitration is like a private court. So why would people choose to pay a private arbitrator to resolve the parenting or economic consequences of their separation and divorce? After all, judges are not paid by disputants who have recourse to litigation and family arbitrators are likely to charge between $150 to $250 per hour for their time and expertise.

Arbitration has several advantages over litigation. Notwithstanding the fees and disbursements of the arbitrator, which must be paid for by one or both of the spouses, arbitration is often cheaper than litigation. The reason for this is that there is no "dead time" in the arbitration process. You do not waste time and money waiting until a judge is ready to hear your case. You can often avoid the delays so often associated with the formal procedures that must be complied with when litigation has commenced.

More importantly, you can select your arbitrator on the basis of his or her expertise. A family law specialist would be an appropriate choice if complex issues of fact and law need to be resolved in order to determine spousal property entitlements or spousal and child support. But legal expertise has relatively little significance in dealing with complicated parenting arrangements that may ensue as spouses and parents go their separate ways after divorce. For all of the jurisprudence that exists on so-called custody and access, including mobility rights, there is very little that the law can teach us about the "welfare" or "best interests" of the child, which constitutes the all-pervasive criterion in parenting disputes that are adjudicated by the courts.

There is, nevertheless, a place for private arbitration in the resolution of the consequences of divorce - whether they relate to children or the economics of divorce. For some disputants, the confidentiality of the arbitration process will be paramount. For others, the speed and flexibility of the arbitration process will be attractive. For still others, the possibility of "tailor making" the arbitration process in terms of selecting the arbitrator and defining the formality or informality of the arbitration process will far outweigh the financial cost of the arbitrator.

Conclusion

The opportunities to be personally creative in seeking constructive solutions to the parenting and economic crises of separation and divorce are legion. Check them out and do your homework. There is a better way than battling in the courts. What you need are the inclination and industry to evaluate your options - both in terms of process and substantive dispositions.

REFERENCES

Acknowledgments:

Professor Julien Payne is a professor of law at the University of Ottawa (Common Law Section). He is the author of several family law books in Canada and is recognized as one of Canada's foremost experts in family law. For more information on Family Dispute Resolution, you may wish to read Chapter V of Dealing with Family Law, McGraw-Hill Ryerson Limited, Toronto, Canada, which is co-authored by Julien Payne and his wife, Marilyn Payne.