Understanding Your Options
When couples separate, they face difficult decisions about children, property, and finances. How you resolve these disputes can significantly impact the outcome, your relationship with your ex-spouse, your children's wellbeing, and your financial situation. Understanding all available dispute resolution options helps you choose the approach best suited to your circumstances.
Alberta courts actively encourage alternative dispute resolution (ADR), recognizing that collaborative approaches often produce better outcomes than adversarial litigation. Many judicial centres require parties to attempt ADR before proceeding to trial. Even when litigation becomes necessary, most cases settle before trial, often after the parties have gained perspective through the legal process.
The resolution method you choose affects not just the legal outcome but also the emotional toll on your family, your ongoing co-parenting relationship, how much money you spend, and how long the process takes. No single approach is best for everyone; the right choice depends on your unique circumstances.
Negotiation
The simplest form of dispute resolution is direct negotiation between you and your spouse, either on your own or through your lawyers. Many couples successfully resolve their separation through negotiation without formal mediation or court involvement.
How Negotiation Works
- Kitchen table discussions: You and your spouse discuss and agree on terms directly
- Lawyer-assisted negotiation: Your lawyers exchange offers and negotiate on your behalf
- Four-way meetings: Both spouses and both lawyers meet together to negotiate
When Negotiation Works Best
- Both parties communicate reasonably well
- No significant power imbalance exists
- Both parties are acting in good faith
- The issues are relatively straightforward
- Both parties want to minimize conflict and cost
Limitations of Negotiation
Without a neutral third party, negotiations can stall when parties reach impasse. Power imbalances may result in unfair outcomes. There is no structure to keep discussions productive. However, negotiation remains the least expensive and most efficient approach when it works.
Mediation
Mediation involves a trained, neutral third party who helps you and your spouse discuss issues and work toward agreement. The mediator does not decide your case or give legal advice; they facilitate productive conversation and help you find common ground.
The Mediation Process
- Initial meeting: The mediator explains the process and assesses whether mediation is appropriate
- Information gathering: Both parties share relevant information (finances, parenting concerns)
- Issue identification: The mediator helps define what needs to be resolved
- Option generation: Both parties brainstorm possible solutions
- Negotiation: The mediator facilitates discussion toward agreement
- Agreement: Terms are documented for legal formalization
Types of Mediation
- Facilitative mediation: The mediator facilitates discussion but does not evaluate or recommend
- Evaluative mediation: The mediator may offer opinions on likely court outcomes
- Transformative mediation: Focuses on improving communication and relationships
- Court-connected mediation: Free or subsidized mediation through Alberta's Family Justice Services
- Private mediation: Mediators in private practice, often lawyers or therapists
Costs and Timeline
Private mediation typically costs $250-500 per hour, with most matters resolving in 4-10 hours of mediation time. Total costs often range from $3,000-$10,000 (split between parties). Court-connected mediation is free or low-cost. Most mediations complete within 2-4 months.
Collaborative Family Law
Collaborative family law is a team-based approach where both parties commit to resolving their dispute without going to court. Each party has their own collaboratively trained lawyer, and sometimes neutral specialists (financial professionals, family specialists) join the team.
The Participation Agreement
At the outset, both parties and their lawyers sign a Participation Agreement committing to:
- Negotiate in good faith toward settlement
- Share all relevant information openly and honestly
- Respect each other's interests and concerns
- Not threaten or initiate court proceedings
The Disqualification Clause
The key feature of collaborative law is the disqualification clause: if the collaborative process fails and either party goes to court, both collaborative lawyers must withdraw. Neither lawyer can represent their client in court. This creates powerful incentives for everyone to reach settlement.
When Collaborative Law Works Best
- Both parties genuinely want to settle outside court
- Both parties are willing to negotiate fairly
- Issues are complex enough to benefit from professional guidance
- Preserving the co-parenting relationship is important
- Both parties can afford collaborative lawyers
Costs and Timeline
Collaborative divorce typically costs $15,000-$40,000 total (both parties combined), depending on complexity. This is generally less than litigation but more than mediation. Timeline is usually 4-8 months for straightforward matters.
Arbitration
Arbitration is a private process where a neutral arbitrator (often a lawyer or retired judge) makes binding decisions after hearing from both parties. It is essentially a private trial, with the parties choosing their own decision-maker and procedures.
How Arbitration Differs from Mediation
In mediation, you decide the outcome; in arbitration, the arbitrator decides. The arbitrator's decision is binding and enforceable like a court order. Mediation is facilitative; arbitration is adjudicative.
Advantages of Arbitration
- Speed: Much faster than court (weeks or months vs. years)
- Flexibility: Parties can customize procedures
- Choice of decision-maker: Parties select the arbitrator
- Privacy: Proceedings are confidential
- Scheduling: Hearings scheduled at parties' convenience
- Expertise: Can choose arbitrator with specific expertise
Limitations of Arbitration
- Cost: Parties pay the arbitrator (unlike judges)
- Limited appeal: Very difficult to appeal arbitration decisions
- Binding: You give up control over the outcome
- No precedent: Decisions are private and do not create public precedent
Med-Arb
Med-Arb combines mediation and arbitration: parties first try to mediate, and if they cannot agree, the same professional (or a different one) arbitrates unresolved issues. This ensures resolution while preserving the benefits of mediation for issues where agreement is possible.
Parenting Coordination
Parenting coordinators are professionals who help high-conflict parents implement their parenting plans and resolve ongoing disputes about day-to-day parenting issues without repeatedly returning to court.
What Parenting Coordinators Do
- Help interpret ambiguous terms in parenting orders
- Resolve disputes about schedules, activities, and other parenting issues
- Make binding decisions on minor matters (within defined authority)
- Facilitate communication between high-conflict parents
- Monitor compliance with parenting arrangements
When Parenting Coordinators Are Used
Parenting coordinators are typically appointed by court order in high-conflict cases where parents repeatedly disagree on minor issues. They are not appropriate for initial resolution of major custody disputes but are valuable for ongoing implementation of existing orders.
Litigation
Litigation is the formal court process where a judge makes decisions after hearing evidence from both sides. While other dispute resolution methods are consensual, litigation can be initiated by one party alone.
The Court Process
- Pleadings: Filing the initial court documents
- Case conferences: Early meetings with a judge to identify issues and encourage settlement
- Interim applications: Requests for temporary orders during the process
- Disclosure: Exchange of financial and other relevant information
- Questioning: Formal examinations under oath
- Pre-trial: Final settlement attempt before a judge
- Trial: Full hearing with evidence and witnesses
When Litigation Is Necessary
- One party refuses to negotiate reasonably
- Safety concerns require court protection
- Emergency orders are needed
- Significant power imbalance prevents fair negotiation
- One party is hiding assets or being dishonest
- ADR has been tried and failed
Costs and Timeline
Litigation is the most expensive option, typically costing $15,000-$50,000+ per party for contested matters, and potentially $100,000+ for complex cases going to trial. Timeline is usually 1-3 years from filing to trial.
Choosing the Right Approach
Consider these factors when selecting a dispute resolution method:
Consider Your Relationship
- Can you communicate with your spouse?
- Is there a history of abuse or control?
- Do you need to co-parent long-term?
- Is your spouse willing to negotiate fairly?
Consider Your Issues
- How complex are your finances?
- Are there urgent safety concerns?
- Do you have children together?
- How far apart are your positions?
Consider Practical Factors
- What can you afford?
- How quickly do you need resolution?
- How important is privacy?
- How important is control over the outcome?
Frequently Asked Questions
Can I switch approaches if one is not working?
In most cases, yes. If mediation fails, you can proceed to arbitration or litigation. If negotiation stalls, you can try mediation. The exception is collaborative law, where the disqualification clause means starting over with new lawyers if collaboration fails.
Is ADR legally binding?
Arbitration decisions are binding. Mediated and negotiated agreements become binding when formalized in a separation agreement or court order. The discussions themselves are not binding until documented and signed.
Do I still need a lawyer if I choose ADR?
For mediation, independent legal advice is strongly recommended even if you do not have a lawyer at sessions. For collaborative law, each party must have their own collaborative lawyer. For arbitration, having legal representation is advisable though not always required.
What if my spouse will not participate in ADR?
You cannot force someone to mediate or collaborate. However, courts may require parties to attempt mediation before trial. If your spouse refuses all reasonable resolution attempts, litigation may be your only option.
How do I find mediators and arbitrators in Edmonton?
The Alberta Arbitration and Mediation Society maintains rosters of qualified professionals. Your family lawyer can recommend professionals they have worked with. Court-connected mediation is available through Family Justice Services.