Today’s topic is: How is the Mediation/Arbitration process similar to and different from a Judicial Settlement Conference?
On my website, www.bevchurchillfamilylawyer.com, under ‘Other Settlement Processes’, I discuss the Judicial Settlement Conference process. In my experience, the Judicial Settlement Conference is, or was, a very useful settlement process. Granted, this process is only available once a family law dispute is before the Courts, but our Supreme Court Judges worked very hard to assist the couple and their lawyers to resolve their dispute short of a full trial and more often than not, were successful in doing so.
Now, you may have noticed that I used the past tense when I described the Judicial Settlement Conference and may have wondered, why?
Well, the reason is that there are times when lawyers are not able to get a date for a Judicial Settlement Conference. Lawyers are told that although it is a useful process, Judicial Settlement Conferences are not given “priority”. What this means is that although this is a settlement type process, within the Court system and rules, practically speaking, it may not be available. This may be the case even when the 2 lawyers may have a 2 week trial set and wish to try to resolve the matter through a Judicial Settlement Conference to try to save Court and Judge time by setting a one day Judicial Settlement Conference. In other words, they may not be given a date. This is frustrating and true!
The Mediation/Arbitration process offers another settlement process which is similar to the Judicial Settlement Conference, but some may argue, has the potential to be better. Why?
In the Judicial Settlement Conference, the parties are told by the Judge that although the Judge is able to provide an opinion on the family law dispute, it is a non binding opinion. This is because that particular Judge will not be the trial Judge. Lawyers and Judges know that this makes perfect sense as the Judicial Settlement Conference is not the trial. Witnesses are not called to give their evidence and the evidence at the trial may very well be different than the information provided at the Settlement Conference. This can be very difficult for a non lawyer to understand; aren’t the facts, the facts. The problem can be that the facts are not the evidence and each party made see the facts differently and so the Court is called up to “find” the facts based on the evidence.
Further, the opinion of that particular Judge may not be the result the trial Judge’s conclusion or decision following the trial of the family law dispute.
This may be seen as being a logical result for lawyers and the Judge, but consider the client. The client knows they are going to Court. The client knows they will be appearing before the Judge and the other lawyer and their spouse. They may even have to speak in the court room. The client may expect to get more for all of this stress and anxiety. This can lead to confusion on the part of the client. And this is assuming that a date can be obtained for the process.
In the Mediation/Arbitration process, the parties know that the professional,who is the Mediator, will eventually, and if need be, also be the Arbitrator. The timing of these processes is explained to the parties. It is known that the Mediation will take place first and the Mediator will be working with the parties and their lawyers to facilitate the resolution of the dispute. If a resolution is achieved, the dispute is settled. A Separation Agreement is prepared and the parties with their lawyers will sign the Separation Agreement.
From those professionals actively practicing in the Mediation/Arbitration process, it is said that 9 out of 10 Mediation/Arbitrations result in settlement during the Mediation stage. In these cases, the Arbitration stage is not necessary.
In the event that the matter does not resolve at the Mediation stage, arrangements are made for the Arbitration process, including the scheduling of a Pre-Arbitration meeting, as well as a date for the Arbitration and any other matters that may need to be addressed.
Stay tuned for future discussion on the Arbitration process.
February 25, 2013