Divorce, Arbitration, And Mediation - An In-depth Discussion

Over our years of service as family lawyers in Edmonton and surrounding areas, we have come to understand that the divorce terms and legal considerations confuse a lot of people. When the terms like contested/uncontested divorce, fault/no-fault divorce, mediation, arbitration, annulment, ex parte divorce, and collaborative divorce are thrown at people, they often feel highly overwhelmed. As a result, they mistakenly believe that all of the above are different types of divorce.

In this blog post, we shall help you understand these terms and differentiate between mediation and arbitration as different divorce ADR methods in Canada.

Divorce And Its Subtopics

Primarily, there are only two types of divorce in Canada:

Uncontested divorce – The procedures within this divorce category are often followed when both spouses amicably agree on all the divorce terms with no areas of dispute.
Contested divorce – This is whereby one or both parties do not agree on divorce matters such as property and asset division, spousal support, child decision-making, and other aspects.

This means the rest of the terms are not types of divorce, but different methods couples can use to pursue divorce. In this regard, the three most important terms are mediation, arbitration, and litigation. Canadian couples have two main settlement options when pursuing a divorce:

In court resolution, which is often referred to as litigation
Out-of-court settlements and the use of alternative dispute resolution methods such as mediation and arbitration

Litigation As A Settlement Method

Let us discuss the litigation method first. Litigating a case in court is the traditional method of obtaining a divorce in Canada. In this case, spouses who cannot settle divorce matters and have a lot of disputes fight and defend themselves in front of a judge. Although the court proceedings and case administrations vary from province to province, the process is almost identical.

The parties and their legal representative present their cases before a judge and provide the relevant evidence. The judge scrutinizes all the evidence and paperwork and examines the arguments put forth by both parties. In the end, the judge issues an enforcing divorce order that both parties must comply with.

However, litigating a case in court is not only expensive but also overly stressful and time-consuming. The latter is why even the government encourages couples to opt for ADR instead of litigation. ADR, which stands for alternative dispute resolution, includes the use of methods that aim to resolve a family dispute, such as a divorce, and its complexities out of court.

Although there are many types of ADR, the most commonly used methods in Canada are mediation and arbitration. Also, it is worthwhile to remember that one ADR does not have any superiority over the other. That is, the suitability of these methods will depend upon a couple’s personal needs and circumstances. While someone may value confidentiality and decision-making freedom, another person may feel more comfortable pursuing divorce through a more formal method.

Mediation Vs. Arbitration

Mediation is one of the most widely used and successful forms of ADR in Canada. Research reveals that millennials and Gen Z, which make up 27% and 22% of the Canadian population, respectively, prefer a less formal approach to divorce . The latter is the primary reason mediation services continue to prosper in the country.

In mediation, an impartial third party called a mediator helps couples amicably resolve dispute-causing divorce issues out of court. Unlike litigation, mediation is an informal process, and the mediator does not make any binding decisions. The mediator simply suggests solutions based on the unique needs of the family.

The method is not only less expensive but also more confidential as the need to drag matters into a public trial is eradicated. Likewise, mediation also overcomes the traditional cut-the-cookie court decisions by allowing families to reach mutually beneficial agreements on property division and child guardianship based on their personal needs.

Contrarily, arbitration is for people who are not comfortable with an utterly informal process but don’t want a public trial either. In this case, a neutral third party scrutinizes the evidence that each party furnishes and makes binding decisions on the relevant divorce aspects. Thus, the decisions of an arbitrator are like those of a judge.

About The Divorce Company

Throughout our years of service in Edmonton, we have helped numerous couples reach amicable and worthwhile divorce decisions without the need to resort to a court. Learn more about The divorce Company and our well-reputed mediation services.

Looking for a stress-free and quick divorce? Contact us now.