Family Dispute Resolution

The following are types of dispute resolution that can be used to satisfy the requirement for family dispute resolution. These processes can also be used even when family dispute resolution is not required. For example, the parties themselves can decide to try one or more of these methods even though they have not started a court case.

The parties themselves are responsible for the costs of family dispute resolution.

For more information, see the Saskatchewan Government’s Early Family Dispute Resolution webpage.

Mediation uses a neutral and independent third person, called a mediator, to help people who have a dispute find a way to resolve it. Mediation is not couples counselling or therapy. Problems that can be solved through mediation include such things as:

• who, if anyone, will stay in the family home
• where the children will live
• how the parties and any children will be supported
• how property will be divided

The parties themselves are still responsible for making decisions about how to settle matters. However, the mediator may help the parties find common ground or consider things in a different light. A mediator cannot make an order or force the parties to agree.

A family mediator can be a social worker, lawyer, psychologist or other trained professional. If the parties are seeing a lawyer, their lawyer may recommend a mediator. Parties may also ask friends for the names of mediators they have used, search an online directory, or look in the yellow pages of the phone book. Conflict Resolution Saskatchewan has a directory of mediators in Saskatchewan.

Family mediators must have certain qualifications. They must:

• be a member of a recognized organization, such as the Law Society of Saskatchewan, Family Mediation Canada, the ADR Institute of Saskatchewan, or a member of the Dispute Resolution Office’s (Government of Saskatchewan) Family Mediation Team
• have at least 2 years of experience in family-related practice
• have completed at least 80 hours of mediation training including:
  • 21 hours of training on family dynamics in separation and divorce
  • 7 hours of training on financial issues related to separation and divorce
  • 7 hours of training on ethical issues related to separation and divorce
  • 7 hours of training on drafting summaries of meetings and memoranda of understanding
• have completed at least 14 hours of family violence training
• have completed at least 21 hours of family law training if they are not lawyers

Mediation usually involves direct discussions with the other party. Typically, the mediator and both parties are in the room together. Sometimes, factors such as distance, family violence or a power imbalance may make it difficult to have everyone in the same room. In these cases, there may be options such as shuttle mediation, where each party meets separately with the mediator. Where distance is an issue, technology such as video-conferencing can be used for mediation.

The parties generally meet with the mediator several times. The first meeting is often used to:

• determine if mediation is a good option for the parties
• discuss how mediation will work
• establish basic rules for future meetings

Depending on the situation, the mediation process can include people other than the parties themselves. This could be a new partner or extended family members.

A mediator may help the parties find solutions they had not considered before. The parties discuss the issues and make joint decisions about how to settle them. The mediator can then help them put the decisions down on paper.

Nothing said or used in mediation can be used for other purposes unless both parties and the mediator consent to this in writing.

If a court case has been started regarding parenting arrangements for a child or child or spousal support, the court can appoint a family mediator. The court can do this on its own or if one party asks the court to appoint a family mediator. This can be done even if the parties have already started some kind of dispute resolution.

The person appointed must agree to act as a family mediator and have the required qualifications. The court determines how the costs of a mediator will be split between the parties. The court can order one party to pay the whole cost if contributing would cause the other party serious financial hardship.

Either party can decide at any time to end mediation. If the parties are using mediation to satisfy the requirement for family dispute resolution, they must make a good faith attempt to resolve their issues before ending mediation. If mediation is court ordered, the parties must attend at least one session before ending mediation. After the first session, either party can decide to discontinue mediation and go back to court.

Parenting coordination can only be used if there is already an agreement or court order concerning parenting arrangements. If there is, the parties can agree to use a parenting coordinator to try to resolve issues around that order or agreement. Both parties are required by law to give the coordinator any information they request to help with parenting coordination.

Parenting coordinators can help build consensus between the parties by doing things such as:

• creating guidelines about how the agreement or order will be implemented
• creating guidelines about communication between the parties
• identifying and creating strategies for resolving conflicts between the parties
• providing information about resources for improving communication or parenting skills

A parenting coordinator can be a:

• licenced lawyer
• psychologist
• social worker
• mediator who is a member of Family Mediation Canada or ADR Institute of Saskatchewan

They must have at least 5 years of experience in a family-related practice. They must have at least 40 hours of training in parenting coordination, including training about:

• the role and responsibilities of a parenting coordinator, including screening parties for power imbalances and family violence
• arbitration and decision-making
• communication skills development
• the effects of separation and divorce on parents and children
• high conflict family dynamics
• child development and developmental needs

Parenting coordinators who are not lawyers must also have at least 14 hours of training in family law. All parenting coordinators must also have at least 14 hours of family violence training. This includes training to identify and manage family violence and power dynamics in relation to dispute resolution.

A parenting coordinator works with the parties and can make decisions about the child’s:

• daily routine and parenting time schedule
• education
• participation in extracurricular activities and special events
• medical, dental or other health care
• childcare arrangements with people who do not have parenting time or decision-making authority
• discipline
• transportation and exchange for parenting time
• travel plans when the child is going between the parties
• parenting time during vacations and special occasions
• communication between a party and the child when the child is not in the party’s care

In making any decisions, the parenting coordinator must only consider the best interests of the child.

A parenting coordinator cannot make a decision about:

• anything that is excluded by the agreement between the parties and the parenting coordinator
• how decision-making responsibilities are divided between the parties
• giving parenting time to someone who does not already have parenting time with the child
• relocation of the child
• division or possession of property or debt

A parenting coordinator can tell the parties about their decision verbally. However, it must be put in writing and signed by the coordinator as soon as possible. The parties must comply with the decision, and it can be filed with the court. If it is filed with the court, it is enforceable as a court order.

The decision of a parenting coordinator can be set aside by the court if it was not something the parenting coordinator had the authority to decide. The court can also set aside a decision by a parenting coordinator if they made a mistake about the law. This can also be done if they made a mistake about how the law applies to the facts. If the court sets aside the parenting coordinator’s decision the court can make orders to resolve the issues. If the court does not set aside the decision, the court can make orders to enforce the decision.

Anything used or said during parenting coordination cannot be used for other purposes unless both parties and the coordinator consent to this in writing.

If there is a court case, either party can ask the court to make a parenting coordination order. They can do this even if they have already started some kind of dispute resolution. The court can specify how the expense is to be divided between the parties. The court can order that one party will pay the full cost if splitting the cost would create serious financial hardship for the other party.

A parenting coordinator’s authority to act ends two years after they were appointed. As long as it is before two years, the agreement or court order can also state that it ends on a certain date or when a certain event occurs.

The parties to a parenting coordination agreement can also end it at any time if they agree. If only one party wants to end the parenting coordination agreement, they can apply to court to end it. If there is a parenting coordination order, the court can make another order ending it. If the parenting coordinator no longer wants to act, they must give notice to the parties. If the court ordered parenting coordination, the coordinator must also notify the court if they are no longer acting.

Arbitration is another type of dispute resolution that can be used for family law matters. The parties to a dispute agree to appoint an arbitrator to decide their issues. The arbitrator will then decide rather than the court. Parties can also agree to have future disputes concerning a family law order or agreement dealt with by arbitration. Unlike a mediator, an arbitrator is given the power to make decisions about how to resolve the dispute. These decisions are called awards.

Arbitrators are independent third parties and are required to have certain qualifications. To be a family arbitrator, the person must:

• be a lawyer
• have at least 10 years of experience in family-related practice
• have completed at least 40 hours of arbitration training, including training about:
  • laws that apply to arbitration
  • the conduct of an arbitration hearing
  • rules of evidence and natural justice
  • writing awards and decisions
  • high conflict family dynamics
• have completed at least 14 hours of family violence training, including training in:
  • identifying, assessing and managing family violence
  • power dynamics in resolving family disputes

In addition, arbitrators must take at least 6 hours of training each year about arbitration of family disputes. Parties can choose anyone with these qualifications to arbitrate their dispute.

An arbitrator can only be used if you and the other party agree in writing. Both the parties and the arbitrator chosen must sign the agreement. The agreement sets out the issues to be determined and the process that will be used. Depending on the process the parties decide to use, arbitration can include:

• mediation
• negotiation
• written submissions
• testimony from witnesses

Regardless of the process being used, the parties must be treated equally and fairly. The arbitrator cannot favour one party over the other. Both sides must be given a chance to present their case and to respond to the other party’s case.

After hearing from both sides, the arbitrator makes a decision called an award. If the arbitrator is deciding parenting arrangements, they must consider the best interests of the child. Arbitrator’s decisions must be consistent with laws concerning whatever they are deciding.

Either party can appeal the award to the court if it involves a question of law or of mixed law and facts. The court can always change an award in the same circumstances they can change any family law court order.

Once an arbitrator has been appointed, the process can usually only be ended if both parties agree.

Collaborative law is a type of dispute resolution where each party works with their own collaborative lawyer. These lawyers have been trained to negotiate fair and reasonable settlements. Parties can also decide to involve other professionals for help with specific issues. For example, an accountant or psychologist may be used.

The parties must commit to reaching a settlement outside of the court process. They must agree that the lawyers will not represent them in court if no agreement is reached. If, however, the parties reach an agreement, the lawyers will work with them to obtain any required court orders.

To provide collaborative law services, lawyers and other professionals must:

• be a member of Collaborative Professionals of Saskatchewan
• have at least 15 hours of conflict resolution training.
• have at least 14 hours of collaborative process training
• have at least 14 hours of family violence training

To begin the process, everyone involved signs a participation agreement. This agreement sets out the way they will work together. Under this agreement, lawyers and other professionals are not allowed to assist the parties in the event the matter proceeds to court. The process is controlled by the client. The lawyers representing each party guide them towards reaching a settlement.

Because the parties both attend meetings, this process may not be appropriate if there is family violence. This process also requires both parties to fully disclose all their financial information. If there is a strong chance that this will not happen, this process may not be the best option.

Either party can decide to end the collaborative process at any time. However, none of the professionals involved can represent either party if later there is a court case.

For more information, visit Collaborative Professionals of Saskatchewan.