What is Alternative Dispute Resolution (“ADR”)?
For a great summary of the various methods of dispute resolution, read Kasey Anderson’s blog post here.
ADR in the Context of Domestic Violence
There is often an assumption in the legal community that ADR methods like mediation, which involve negotiation between the parties, are, as a rule, unsuitable for matters where there is a “power imbalance”. Certainly there is a “power imbalance” in cases where there is a history of domestic violence and many lawyers and legal scholars have opined that this makes ADR inappropriate for cases where there are issues of domestic violence.
However, there are a number of reasons that lawyer-assisted mediation or mediation/arbitration may well be a more suitable method of resolution in cases involving domestic violence.
When I refer to lawyer-assisted mediation/arbitration, this means that the parties “opt out” (either temporarily or entirely) of the Court process and attend mediation/arbitration sessions accompanied by lawyers. Each parties’ lawyer is able to advise their client on their rights, obligations, entitlements and options throughout the process. The simple fact of a lawyer’s attendance at the mediation/arbitration acts to “level the playing field” in a case where there is a “power imbalance”.
Lawyer-assisted mediation and mediation/arbitration can be as formal or informal as the parties choose. Typically, the process begins with mediation, which in many cases is quite informal. In the standard case, this would involve the parties and their lawyers sitting in the room together and identifying the issues which need to be resolved. However, in a case with a history of domestic violence or some other sort of “power imbalance”, the parties may choose to “caucus”. This means each party and their lawyer can sit in a separate room, with the mediator meeting separately with each party and working to identify issues without the need for the parties to express their concerns in front of one another.
As opposed to a Trial in Court, this allows the parties to work at their own speed, take breaks when necessary and avoids the often traumatic process of giving evidence under oath regarding a violent incident and being cross-examined by the opposing lawyer – all while facing their abuser in the court room.
Secondly, parties are able to choose their decision-maker. In a Trial in Court, the matter is assigned a judge by the Trial Coordinator. While judges are widely educated in social justice issues such as domestic violence, each has their own perspective and approach and the parties have no ability to seek out a judge who they feel would best understand their matter. Judges have little control over their own court schedules, and will have less ability to give a matter additional time.
In lawyer-assisted ADR, the parties agree on a mediator/arbitrator with guidance from their lawyers. Lawyers with experience in ADR will be able to suggest mediator/arbitrators who they feel would best understand and sensitively approach the underlying issues of domestic violence.
In lawyer-assisted mediation/arbitration, parties are able to agree on creative solutions which differ somewhat from what a judge might do in a Trial. Judges are bound by the law, and can only order what the law allows them to. In a mediation, parties can agree to something different from what a judge could order, which may allow for a quicker or more meaningful resolution.
Finally, mediation/arbitration is a private process. Anything discussed in mediation is “without prejudice” – i.e., it cannot be used against either party. This may mean that parties are more willing to admit to wrongdoing, apologize, compromise or simply to speak their minds. Final resolutions – whether mediated or arbitrated – are not made public, and both parties’ privacy is respected.
For the preceding reasons, lawyer-assisted mediation/arbitration may well be a more appropriate method of resolution in family law matters even where there is a history of domestic violence. The lawyers at Vogel are able to assess your matter and give advice on the best method of resolution and, if a method of ADR is chosen, the best professionals to assist the parties.