What is ADR?

ADR stands for alternative dispute resolution (sometimes also referred to as external dispute resolution). This term describes collectively various approaches for resolving disputes between two (or more) parties without having to use the court system.

Alternative dispute resolution encompasses dispute resolution mechanisms such as mediation, arbitration, mediation/arbitration, negotiation, collaborative law and other subcategories of dispute resolution. 

ADR has become an increasingly viable and popular method of addressing disputes, including family law disputes, for a number of reasons. The administration of justice, including in Ontario, has faced increasing pressure from a number of fronts. Rapid urban expansion has meant that courts are facing more and more litigants every day. In the meantime, there is competition for financial resources, including from healthcare. As courts become busier and busier, alternative methods of addressing disputes become increasingly attractive. More and more litigants are turning to mediation and arbitration, for example, to sort out their family law problems.

In summary terms, mediation is a process where spouses meet with a third party who is skilled at facilitating negotiation between them. Mediation may be open or closed. In closed mediation, nothing said in the context of the negotiations with the mediator can be repeated in either an existing or a later court proceeding.  In open mediation, the reverse is true and either party may request that the mediator issue a report summarizing the process and outcome of the mediation. Either party may then rely on this report before the court.

Arbitration is essentially "private court". The parties to an arbitration agree that a person selected by them (the arbitrator) will make a binding decision on the issue(s) put before him or her. In Ontario, the arbitrator is bound by the same law that a judge would be bound in making his or her decision for the parties.

Mediation/arbitration is a hybrid of the two processes described above. For a period of time, the parties attempt mediation. Based on specific, agreed-to terms, the mediation ends if the parties are unable to reach a resolution and the mediator then puts on an arbitrator's hat. This means that he/she then convenes a formal hearing of the outstanding issue(s) and after considering evidence and submissions, makes a binding decision for the parties.

For further information about how ADR may be of assistance to you in a family law dispute, speak to a family law lawyer.

Artwork: Kees Van Dongen