Family Law Confidential Episode #4: Why You Need to Understand the Difference Between Negotiation, Facilitation, Mediation & Arbitration

Although much of my family law practice involves court work, there are many means short of full blown court proceedings which might help give the parties that little push they need to come to a final settlement of the dissolution of their family relationship. Negotiation, facilitation, mediation and arbitration all have their place on the autobahn of relationship wrap up, though some are used much more commonly than others. Personally, I use negotiation all the time, but rarely use facilitation, mediation or arbitration - though I know other family lawyers who regularly use some of those others with success.

What is Family Law Negotiation?

Regardless of whether you realize it or not, your entire relationship was likely a product of subtle negotiation. Thus it’s hardly surprising that negotiation is the primary tool needed to work out the transitional details when that relationship ends. If you’re keen on wrapping things up as quickly and painlessly as possible, some explicit negotiation - where each party is quite aware a negotiation is happening - is probably in order. 

Negotiation can be either “positional” or “interest based.” A future episode of Family Law Confidential will go over in greater detail the fine mechanics of each of the negotiation-facilitation-mediation-arbitration models. But for now, you need to know that positional means primarily parties staking out respective positions as a single apple (or whatever flavour you prefer) pie, where each will take slices out of the one pie, and perhaps hope to wind up with more than half the pie as a share. Whereas interest-based negotiation involves the parties focussing more on desired outcomes first, rather than the details of how they will get there. 

What is Family Law Facilitation? 

Facilitation involves a third-party, often a lawyer, working collaboratively with the two parties going through family change to come to a mutually acceptable resolution. “Collaborative Divorce” would likely fall within the category of facilitation, where a couple hire a single lawyer who does collaborative practice to facilitate an agreement, but also agree that if the collaboration fails each of them will hire different lawyers to fight it out in court in an adversarial process. For couples capable of reasonable communication, where domestic violence is not an issue, facilitation might be a good option. 

What is Family Law Mediation?

Mediation involves aspects of both negotiation and facilitation, but the dynamics are somewhat more adversarial. Each party usually has a lawyer, in addition to the mediator who works for both parties. Mediation could involve both parties in the same room, or might involve each party in different rooms, with the mediator doing shuttle diplomacy.

Mediation might most justified if the parties can’t even agree on the issues to be negotiated, or where the issues are so numerous and complex that help is needed to narrow down the true source of conflict and prioritize what should be settled. 

What is Family Law Arbitration?

While negotiation, facilitation and mediation are all relatively common in family law, arbitration is not, although arbitration is common enough in the commercial/business dispute world. That’s partly because commercial contracts sometimes contain mandatory arbitration clauses, whereas only families that are the product of cohabitation or marriage contracts might be subject to such a clause. But the parties in a family dissolution could agree to arbitration at any time. 

Arbitration has been around for a long time as supposedly a faster, cheaper, and simpler way to settle disputes. However, since parties using the court system get the court almost for free (they only need to pay their own lawyers and experts), whereas using an arbitrator means you have to pay all the arbitrator's fees yourself, as a result that arbitration might not always be cheaper than going to court. If one party laters decides to attack the arbitration process in court because of an unsatisfactory arbitration result, arbitration could in fact wind up being more expensive than court, even if a court ultimately upholds the arbitral award because the parties freely agreed to be bound by that result. 

So all family dissolutions will involve negotiation (formal or informal), some might involve facilitation, a few could do with mediation (especially if children are involved with potentially complex logistics), but arbitration will probably be quite rare. If all of negotiation, facilitation and mediation fail, you'll usually be stuck with a court-based family law process. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com.