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Is There a Trend Away from Family Court?

Is there a trend away from Family Court in obtaining resolution of family disputes? I believe there is. In place of resorting to Family Court in obtaining resolution of family disputes, I make increasing use of combined mediation/arbitration.

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Family mediation/arbitration is usually conducted by an experienced family law lawyer who has special training and is certified to conduct mediation/arbitration. This individual has a good working knowledge of the law, court experience and has represented clients on both sides of various matrimonial issues.

The primary advantages of mediation/arbitration over resorting to Family Court is that mediation/arbitration results in a cheaper and quicker resolution. A cheaper, quicker resolution benefits the family in many ways, and, overall, the process is much less contentious than court. By avoiding the animosity which arises in many court cases, the parties are able to have a more amicable and civil relationship after the issues have been resolved.

Parties usually attend mediation/arbitration with lawyers. The lawyers assist in the negotiating process and provide guidance on legal issues which frequently arise. The process starts with the parties agreeing upon a mediator/arbitrator. The parties then sign a mediation/arbitration agreement, and provide a monetary retainer to the mediator/arbitrator. Once the agreement has been signed and the retainer provided, it is important to know that neither party may subsequently withdraw from the process. If a party does not participate in the process after signing the agreement, a decision will be made in absence of that party and in absence of any input by that party. As this is the case, the use of combined mediation/arbitration prevents either party from walking away from the process if they feel that things are not progressing in their favour. It also encourages each party to be prepared and ready for the mediation/arbitration, failing which the outcome may not be as favourable as they may have otherwise obtained.

In the process, the mediator/arbitrator will start by attempting to mediate a resolution of the issues. If at some point the mediator/arbitrator is of the opinion that the matter cannot be resolved by mediation, the process then will switch to that of arbitration. Different mediators/arbitrators may take varying approaches to arbitration. Some arbitrations are informal in that the mediator/arbitrator will ask if either party has anything further to add that has not already been discussed in the mediation process, and subsequently make a binding decision. Other mediators/arbitrators will take a more formal approach, and ask for sworn evidence and exhibits before making a decision. Either way, the effect of the decision is the same as a Court Order and may be enforced as such.

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