Keeping Divorce Private And Out Of Court Through Mediation
Mediation and/or Mediation-Arbitration may be the best divorce options for people who want to maintain their privacy.
Most couples consider their divorce to be a private, family matter. Unfortunately, when a divorce is litigated, it becomes a matter of public record. Furthermore, decisions that affect not only the divorcing spouses but also their children are ultimately placed in the hands of a judge. One way to maintain greater control over one’s divorce is through mediation or arbitration, two forms of alternative dispute resolution (ADR). These options allow spouses, with the help of a qualified mediator or arbitrator, to reach a divorce agreement that best reflects their unique needs and interests.
Mediation vs. Arbitration
Mediation involves both spouses choosing to keep their divorce out of the courtroom and instead working out their differences privately. Due to court backlogs, the courts themselves often encourage mediation over litigation. In mediation, spouses negotiate privately either face-to-face or in separate rooms with a mediator acting as a neutral facilitator. The mediator may be an experienced lawyer, retired judge, social worker, or psychologist. While the mediator remains neutral, their training ensures that any resulting agreement is legally sound. Each party must also obtain independent legal advice from their own lawyer, as no one lawyer can represent both spouses’ differing interests.
Arbitration, on the other hand, is similar to court but faster, less expensive, and more streamlined. In arbitration, the parties choose their own “judge” (the arbitrator), who is paid by the parties. The arbitrator is typically an experienced family law expert unlike a judge, who may or may not specialize in family law depending on the court. Unlike mediation, where either party can walk away at any time and is not obligated to accept any agreement, arbitration results in a binding decision. The arbitrator has the authority to impose a final settlement on both parties subject to limited right of appeal with courts very seldom not enforcing the ruling.
Benefits of Mediation/Arbitration
There are many benefits to keeping divorce out of court. For couples who value privacy, an out-of-court resolution is often the best route. Court proceedings become part of the public record, while mediation and arbitration remain confidential. This privacy often allows for more open, honest negotiations. Additionally, there’s less risk that agencies like the CRA (Canada Revenue Agency) will review court-filed financial disclosures, which could potentially trigger an audit.
There are also practical advantages. Mediation and arbitration are usually faster and more cost-effective, especially given court delays and high litigation fees. Perhaps most importantly, these methods give couples the flexibility to create a customized agreement that reflects their specific circumstances. They can also jointly retain an expert such as a chartered business or income valuator to fairly and efficiently resolve financial issues. This collaborative, shared-cost approach is especially helpful when navigating complex matters like child custody, support arrangements, and property division.
Family Law: Is Mediation Right for You?
Mediation and arbitration aren’t for everyone and they don’t have to be used together. Mediation can be pursued on its own, without arbitration. Anyone considering divorce and wondering which path is best should consult with a family law lawyer experienced in both litigation and mediation/arbitration. Such a lawyer can offer informed advice on the pros and cons of each option, particularly as they relate to the client’s unique situation.
