Alternatives to Court

Mediation

Court is an expensive process. Luckily, not all matters need to end up at trial, and can be dealt with through Mediation or Arbitration, which are faster, more cost-effective and less litigious.

When possible, mediation often proves to be the most effective and family-preserving option.  The parties have more control over the process.  A mediator is selected by the parties, mutually.  There are many well trained mediators skillful at mediating financial issues, custody and access and parenting plans. It is not necessary for a mediator to have be a lawyer, however, due to the complexity of family law, is some cases a legally trained mediator may be beneficial. Some mediations take place with the parties represented by counsel and many mediations are conducted with the parties only.

The mediator does not make decisions on behalf of the parties, but rather engages them in discussions in order to get the parties to understand each other and ultimately come to an agreement. When, and if, agreements are reached, they can be written into an a Memorandum of Understanding or a Separation Agreement.

At Heft Law, we act on behalf of our clients in the mediation process or we can provide independent legal advice.  Contact us today for a No Fee 30 minute initial consultation to obtain  more information as to how we can provide assistance through the mediation process.

Arbitration

If mediation is unsuccessful, then the parties will need a third party to make decisions on their behalf.

Arbitration is the alternative to seeking a judgment from a court and it is usually the next step in a mediation process that was not successful.  An arbitrator makes binding decisions as does a judge but the arbitration process is much less formal than being in court.  The rules of trial and evidence apply in an arbitration, similar to court. An advantage of arbitration is that, unlike a trial, the details of the family law matter are kept private and confidential as well arbitration can take place much faster than if the parties had to wait for a trial date.

The same legal principles are applied in an arbitration as would be the guiding principles for a judge.  Appeals are possible in the same manner as a trial.

The Ontario Ministry of the Attorney General offers some useful information about arbitration.

At Heft Law, we can provide assistance and representation in your arbitration. Contact us for a No Fee 30 minute initial consultation.

Open vs. Closed Mediation

Closed Mediation

Generally, most family mediation is closed mediation. This means that it is confidential and on a “without prejudice” basis, meaning that everything that is said during the mediation cannot be disclosed at trial. Only the terms of settlement, if any, can be disclosed at trial. Parties tend to gravitate towards closed mediation due its confidential nature, allowing to parties to speak freely and attempt to negotiate their issues on their own terms, without fearing the consequences at trial.

Open Mediation

Conversely, open mediation is generally neither without prejudice nor confidential. The parties understand that either party and/or the mediator may give evidence as to what was said during mediation in a subsequent legal proceeding.

Due to the distinct differences between open and closed mediation, it is very important that the parties considering mediation first enter into a written mediation agreement with each other and the mediator, so that everyone understands the rules, the consequences and the possible outcomes.