11 Dec Private Adjudication

Not all disputes, or discrete issues in disputes, can be successfully mediated. Entrenched positions, unrealistic expectations and “winner-take-all” disputes are just three examples of potentially-insurmountable barriers to a negotiated resolution.

Where negotiation appears unlikely to succeed or proves to have been futile, the parties will need an authoritative ruling over contested issues. They may think that they must proceed to court, but another form of dispute resolution is available to them.

Private Adjudication is an alternative dispute process that involves the assistance of a third party to make decisions for the parties about how their issues will be resolved when they cannot reach an agreement on their own. As the name implies, the process is private. The proceeding and perhaps the outcome are not open to public scrutiny. The process is generally more informal, less expensive and faster than a court proceeding: Moore, The Mediation process, 4th ed., at p. 10. For example, the parties are not bound by the formal procedures that govern court proceedings. They may agree on evidentiary requirements. The parties are able to select a decision-maker with expertise in the subject-matter of their dispute. They are able to agree on the timing of their hearing. They are not forced to wait for their case to be scheduled. They do not have to pay their lawyer to sit much of the day at the courthouse waiting for the case to be called. The parties may agree that their decision-maker will have more flexible order-making authority than would a judge: The Art and Science of Mediation, 2004, at 38.

Private Adjudication of motions may be particularly helpful to matrimonial litigants seeking to avoid the delay resulting from court backlogs or where private adjudication of one or more issues may make protracted court proceedings unnecessary.

Ex Juris ADR Centres provides Private Adjudication of matrimonial motions, either by retired Superior Court Justices or a lawyer certified by the Law Society of Ontario as a Specialist in Family Law. Unlike in the court system, the parties get to choose.

The Honourable Lydia Olah was a judge of the Superior Court of Ontario (Family Branch) for 20 years. She initiated the very successful Dispute Resolution Program in Barrie for Motions to Change in matrimonial litigation. She now conducts mediations and arbitrations with Ex Juris.