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ALTERNATIVE DISPUTE PROFESSIONALS
Each of the partners at Lenkinski, Hooper & Carr LLP are trained in mediation and arbitration.
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MEDIATION
Mediation is a process that can be used as an alternative to, or in addition to, a court process. Mediation is voluntary and can often resolve disputes in a timely and cost-effective manner with resolutions that may not always be available in court and/or optimize the goals of both parties. A third person (the mediator) is involved in the process.
WHAT DOES A MEDIATOR DO?
A mediator is a neutral third party who can help you and your former partner identify and discuss issues relating to the issues arising out of your separation, including issues relating to parenting, establishing two households, child support, spousal support and division of property. Mediators can help you identify issues and work on possible solutions. During mediation, you and your former partner may tell each other directly what you want and need for yourself. If you have children, you can also say what you believe is in your children’s best interests. Sometimes, direct communication may not be appropriate, and the mediator can facilitate communication as an intermediary.
The mediator does not take sides or make decisions for you. They also cannot give legal advice. While the mediator will help you arrive at an agreement, in the end you and your former partner make the decisions including those about the best parenting arrangement for your child.
A mediator will decide if your mediation can be fair and safe at the outset of the mediation. In some cases of partner abuse, a mediator can mediate in a way that makes the process fair and safe. For example, if you aren't comfortable being in the same room as your partner, the mediator can talk to each of you in separate rooms, by telephone, or online. They can plan for both of you to come and go at different times. In other cases, the mediator may decide that they can't make the process fair or safe. If this happens, going to court may be your only option to resolve your issues.
REASONS TO USE MEDIATION
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It can be cheaper than going to court.
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It can be faster than going to court once you have agreed on all of the process details, chosen a mediator, and signed a mediation agreement.
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Mediation is private whereas court proceedings are generally open to the public.
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It can be more flexible in process than going to court. The mediator can decide how to conduct the mediation, including whether it be in person, by telephone or videoconference. There is also more flexibility as to when you meet with your mediator.
Mediation is not suitable for all parties or situations. A mediator will help assess whether it is a suitable for you.
If mediation is successful, the goal is to achieve a binding agreement between parties.
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ARBITRATION
Arbitration is a private dispute resolution process. It is similar to going to court, but in a private process where both parties have an opportunity to present their case to a third person (the arbitrator) and the arbitrator is then authorized to adjudicate the matters in dispute. Mediation and arbitration can be combined into a mediation-arbitration process, whereby the mediator is authorized to also act as the arbitrator on agreed upon issues in the event that the parties cannot reach an agreement through mediation.
WHAT DOES AN ARBITRATOR DO?
If you and your partner cannot agree, your arbitrator decides your issues.
Their decision is called a family arbitration award.
There are laws about how arbitration must happen. The law says that you have to get independent legal advice (ILA) if you use arbitration to resolve your issues. This means that both of you and your former partner will have to at least consult with a lawyer and receive legal advice before proceeding to arbitration.
REASONS TO USE MEDIATION
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It can be cheaper than going to court.
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It can be faster than going to court once you and your former partner agree on things like who will be your arbitrator and what issues to resolve by arbitration.
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It is usually private or confidential. This is different from a court case. Once you start a court case, your file is usually open and accessible to the public. In arbitration, the process is private, with some exceptions. For example, if one partner appeals the arbitrator's decision.
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PARENTING COORDINATION
Parenting Coordination is a form of mediation-arbitration. It is a process to assist separating and divorced parents who are unable to resolve day-to-day disagreements about their children and/or disputes about the interpretation or implementation of terms of their Separation Agreement or Court order relating to parenting issues. Parenting Coordination assists families in implementing and interpreting parenting plans, Court Orders or Separation Agreements. It also assists parents in improving communication and in managing their new roles and relationships. Parenting coordination combines mediation and arbitration, and allows the parenting coordinator to decide certain issues if the parties are unable to agree and/or resolve the issues through mediation. It is a particularly useful dispute resolution process in high-conflict parenting cases.
WHAT DOES A PARENTING COORDINATOR DO?
A parenting coordinator is a person who helps parents resolve day-to-day conflicts about their parenting arrangements or parenting orders. Parenting coordinators are trained to understand the needs of children, help each parent discuss their parenting issues, and help parents to manage and keep children out of conflicts. For example, if your court order says that your children have to spend an equal amount of time with each parent over the summer, but you and your partner cannot agree on the precise schedule, a parenting coordinator can help you figure out a summer schedule. A parenting coordinator cannot decide major things like decision-making responsibility, final changes to parenting time or mobility issues. A parenting coordinator helps separated parents communicate with each other to try and agree on your parenting issues. If you cannot agree, they can decide for you. Their decision is based on information they receive from the parents and, as necessary, from professionals such as doctors, teachers, counsellors, etc. In some cases a parenting coordinator may also receive information from your child.
HOW DOES PARENTING COORDINATION WORK?
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It is often cheaper than going to court to resolve minor parenting issues.
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It is often faster than going to court once you and your former partner agree on all the process details and signed a parenting coordination agreement.
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You get professional help that you may need even after you have a court order, family arbitration award, or separation agreement on parenting issues. Children's needs and issues often change as they get older. A parenting coordinator can help parents who find it hard to communicate with each other and want to set up a process for how they will resolve future issues.
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The parenting coordinator can become familiar with your family dynamics and may be able to intervene and change unhealthy patterns.
In paragraph 11 & 12 of Jirova v Benincasa 2018 ONSC 534, Justice Audet provided
a brief description on how parenting coordination works.
“This resolution model includes two components: the non-decision-making component and the decision-making component. During the non-decision making component of the process (the mediation phase), the PC assesses the family dynamics to obtain a better understanding of the parenting issues and challenges, educates the parties
about child development matters and the impact of parenting conflict on the children, coaches them regarding communication skills and parenting strategies, and mediates disputes as they arise.
During the decision-making portion of the process (the arbitration phase), which is triggered when resolution through mediation is not possible, the PC makes a binding decision on the issue in dispute after having provided both parents with an opportunity to be heard. During both phases of the process, the PC is generally given expanded investigative powers to assist in his or her mandate to mediate or adjudicate on the issue, such as the ability to speak with professionals involved with the family as well as the ability to interview the children, when he or she deems it necessary and in the children’s best interest to do so. Parenting Coordination is a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility, and expeditiousness.”
REASONS TO USE PARENTING COORDINATION
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Summary Mediation/Arbitration Process for Resolving Scheduling Issues
A better way of resolving summer, school breaks, and other holiday disputes.
HOW DOES SUMMARY MEDIATION-ARBITRATION WORK?
After screening has been completed, parents who cannot agree on a school break or holiday schedule can elect from one of three summary arbitration procedures. Once the mediation/arbitration agreement has been signed, the parents will be provided with a 1-hour mediation session, with either Chelsea Hooper or Alex Carr. If the parties are not able to resolve the dispute in the mediation session, the issue will proceed to the elected summary arbitration process with the other professional, under a two-person mediation/arbitration model. Parents may also elect whether to pay a flat fee or to pay per hour.
REASONS TO USE SUMMARY MEDIATION-ARBITRATION
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There is sometimes not enough time to have the court resolve an upcoming scheduling issue. This process is often faster than going to court once you and your former partner agree on the process details and have signed the mediation/arbitration agreement.
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It is often cheaper than going to court to resolve scheduling issues;
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It is generally private and confidential.
