Alternative dispute resolution (ADR) refers to ways of resolving disputes outside of litigation, such as negotiation, mediation, arbitration, and collaborative processes. ADR methods are commonly used in family law cases as they often result in more satisfied clients and allow the parties to voluntarily reach mutually agreeable settlements. Key ADR approaches discussed in the document include negotiation between the parties or their lawyers, mediation which uses a neutral third party to facilitate discussion, and arbitration where a third party makes a binding decision.

1. What is ADR – Alternative Dispute Resolution
• Negotiation or settlement meeting / mediation / mediation-arbitration /
arbitration / collaborative
• Alternative to litigation
• s.9 (2) Divorce Act – duty to advise to negotiate and mediate
• All family lawyers use ADR / spend most of my time negotiating
• Negotiation is used every day
• Usually a negotiated settlement results in a more satisfied client
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2. BATNA
• Best alternative to a negotiated agreement / always
be aware / sometimes it may be better to go to
arbitration or commence a court application
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3. NEGOTIATION
• Direct discussions bw parties / bw counsel / counsel and parties at a
meeting
• Usually w/o prejudice / can happened at any time during litigation
• Four way meeting – without prejudice – parties can negotiate w/o fear
that their discussions can be used against them in the future
• But if no agreement, can use the negotiation process to obtain
information
• An agreement is reached when parties achieve their goals
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4. Process of Negotiation
• Parties need to identify their goals and interests/ different than their
positions or rights
• Goal is to meet interests for each person
• To meet a goal need to generate options
• If the options are not acceptable to the parties they have to compare the
other parties proposal for resolution to his/her BATNA to determine if
they can compromise
• Sometimes a person’s BATNA is better than what is being proposed
through negotiation
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5. • Usually, 4 way meeting happens after disclosure is complete
• NFP statement prepared/ with back up docs/ high-light the differences in
the NFP
• In a 4 way meeting start with less contentious issues or already agreed
upon/ show parties that consensus can be reached / set a positive tone
for the discussions
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6. MEDITATION
• Use a neutral third party to facilitate negotiation/ no decision making
power / the mediator assists the parties in voluntarily reaching a mutually
acceptable settlement of the issues in dispute
• Parties can go with or without counsel
• Parties with counsel usually initiate mediation when they believe that
they require a third party to facilitate discussion and assist in attempting
to resolve the matter
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7. • Closed mediation – the parties agree to keep all issued discussed
confidential
• Parties usually chose closed mediation/ in a closed mediation people can
speak more freely, with ideas and options without it impacting negatively
on them in the future
• Open mediation – good if you believe that the other side is truly
unreasonable/ mediator can provide a report to court if the mediation
fails
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8. • Some mediators do not act as evaluators – facilitators - they have no
opinion as to the outcome of the mediation/ how the matter is to be
resolved/ they are to act as a neutral party/ mediator is only interested in
the dispute resolution process itself
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9. ARBITRATION
• When parties go to Arbitration they are providing a third party (an
impartial Arbitrator) with the authority to make a binding decision in the
matter/ person acts as a judge
• Under the FLA (s.59.3) parties cannot contract out of the right to appeal
on a question of law under the Arbitration Act
• Arbitration Agreement can provide the right of appeal on questions of
fact or mixed law and fact
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10. • Parties need ILA bf sign the Arbitration agreement/ it must be reviewed
carefully
• The Arbitration Act requires that in advance of the Arbitration that the
parties are screened for violence and power imbalance (s.58 (e)
Arbitration Act)
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11. MEDIATION/ ARBITRATION
• MED/ARB is becoming more popular to resolve family law disputes
• Starts as mediation/ parties agree in advance that if the matter is not
resolved at the mediation stage, the matter will progress to arbitration
• Arbitrator can be a new person to determine the issues or can use the
same person to arbitrate as was the mediator
• If use the same person - advantage is that there is an incentive to resolve
the issue through mediation bf arbitration bc the same person is acting as
the mediator and the arbitrator
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12. marchese v. marchese – Ont CA
• Parties agreed to MED/ARB. Parties finished mediation / husband did
not want to go to arbitration / husband went to court / crt stayed his
proceeding and stated that the issues must be determined at arbitration
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13. COLLABORATIVE
• At the outset parties sign a Participation Agreement
• Sets out the terms under which they participate in the negotiation
process
• Parties confirm that they will negotiate in good faith
• Parties agree that if they are unable to resolve their differences, their
lawyers have to resign
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