Four Alternatives for Resolving Family Matters During COVID-19
Family life cannot be put on hold, and family conflicts continue to arise despite the closure of our primary dispute-resolution mechanism, the courts. The most common causes of separation and divorce include financial stress and unemployment, illness or death of a family member, difference in conflict resolution styles and lack of communication, all of which families may be experiencing more acutely during the COVID-19 pandemic.
Issues which arise on marriage breakdown include property and pension division, parenting time, financial support and a wide range of other topics which are pivotal to family life. What conflict resolution options are available?
The spectrum of conflict resolution options available to families in British Columbia range from classic negotiation, where the parties have the most control over the resolution of their dispute, to court, where judges make decisions which are imposed on the parties. This article will explain four conflict resolution options which remain available and the pros and cons of each.
Classic negotiation is a one-on-one form of dispute resolution where parties negotiate directly with one another. The benefit of direct negotiation is that it may be cost- and time-effective; however, there are many downsides to direct negotiation including power imbalances, lack of legal information available to the parties, regret over the outcome, lack of reality-testing in the proposed outcome and the resulting inability of the parties to document and implement the agreed upon result.
In mediation, parties work with a neutral third-party professional to guide them in identifying the issues, facilitating effective communication and assisting them in reaching flexible, balanced, personalized solutions. In mediation, resolution comes as a result of the parties’ mutual agreement. Mediation takes an integrative approach as opposed to a distributive approach to family conflict; rather than dividing benefits among participants, an integrative mediator will work collaboratively with the parties to allow them each to maximize the benefits available to them. The advantages of mediation are extensive and include control over the outcome, an emphasis on privacy and confidentiality, and the ability to engage a legal professional cost-effectively to reach and document a mutually-beneficial resolution without hostile and timely litigation.
- Meditation-Arbitration (Med-Arb)
Med-Arb is a hybrid of mediation and arbitration, and combines the benefits of mediation with the added benefit of arbitration, including finality. In a Med-Arb, the parties agree at the outset that they will use their best efforts to resolve the conflict by mutual agreement but, failing that, that the mediator will become an arbitrator and render and final and binding decision on unresolved matters. The advantage of Med-Arb is the assurance of an outcome. The disadvantage of Med-Arb is that, ultimately, the outcome may not be one that either party would have agreed to.
Arbitration operates much like a court hearing, but the decision-maker is an industry professional as opposed to a judge. Arbitration results in a decision being imposed by an impartial decision maker after hearing the evidence. An arbitrator’s decision is binding. The disadvantage of arbitration is that, as with court, the parties do not have control over the outcome; the advantage of arbitration is that the decision-maker is an expert in the field of family law and arbitration can often be scheduled a lot more quickly than a court hearing.
Use of Courts for “Urgent” Family Matters
Court remains an option for “urgent” family law applications and we have received some guidance from the Ontario Superior Court as to what will constitute urgency (Thomas v. Wohleber, 2020 ONSC 1965):
- The concern must be immediate; that is one that cannot await resolution at a later date;
- The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
Despite the ongoing ability of the court to hear urgent matters, judges are highlighting the importance of alternative dispute resolution during these uncertain times (Ribeiro v. Wright, 2020 ONSC 1829): Right now, families need more cooperation. And less litigation.
Tips for Remote Video Conferencing
Mediators and arbitrators across the province are working with videoconference providers to ensure that families can access mediation and arbitration services during the COVID-19 pandemic. If you plan to mediate or arbitrate remotely, please keep the following guidelines in mind to protect your privacy and confidentiality:
- Ensure that your dispute resolution professional creates a private meeting for your videoconference that requires a password for you to enter;
- Ensure that all recording abilities are disabled (mediations are without prejudice communications);
- Create a quiet space where you can participate in the videoconference fully, without the distraction of work and without the presence of children, who may be the subject of discussion; and
- Commit to and seek a commitment from the other party to maintain the confidentiality of the mediation by not allowing other participants within hearing distance, unless their presence has been previously agreed upon.
Achieving Conflict Resolution: Never Cut What You Can Untie
18th Century French moralist Joseph Joubert is credited for saying that you should “never cut what you can untie.” The goal of preserving and improving family relationships, while reaching mutually-beneficial solutions, is at the heart of mediation.
Mediation empowers families to resolve disputes themselves, using a wide array of tools, in a safe, supported, professional environment; mediation allows families to resolve their disputes practically, efficiently and creatively; mediation ensures that families’ affairs are kept private and confidential; and mediation provides people with the opportunity to work with a family law professional to move beyond conflict to resolution and lay the groundwork for healthy ongoing relationships.
If you would like support and assistance in resolving any of these matters, please contact Emily Anderson at Linley Welwood LLP, who is a Family Law Dispute Resolution Professional accredited by the Law Society of BC.
© Emily Anderson, Linley Welwood LLP
The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.