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. So 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.
The 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.
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.
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.