After She Leaves: Pros and cons of alternate dispute resolution

The content in this post is adapted from our recently updated After She Leaves Resource Manual. Click here to learn more about the manual.

In some family law cases, Alternate Dispute Resolution (ADR) can be better than going to court. Participants can have more control over their cases and the final settlement, and ADR can be faster, cheaper and more private than a court case.

However, ADR is not appropriate for all kinds of disputes. In particular, ADR may not be appropriate if the woman’s partner engaged in coercive controlling violence, leaving her intimidated by and afraid of them. If one partner has more power than the other (whether because of abuse, level of education, self-confidence, familiarity with Canadian laws or ability to speak English), ADR does not necessarily offer all of the protections that may be available in a court proceeding.

ADR is only likely to be successful if both participants:

• can listen
• be honest in their communications
• are willing to compromise in order to reach an agreement that is acceptable to both of them

It is not likely to be successful for a woman who has left an abusive partner, because he can use the process to continue to manipulate, intimidate and control her to get what he wants.

By its very nature, ADR assumes the participants have a relatively equal ability to negotiate about important issues. If a woman is threatened or intimidated by her partner, she may be coerced into making agreements that do not ensure safety and freedom from control for herself and her children. Women often hope that the ADR process will help them resolve issues with an abusive and controlling partner more quickly and may reduce their demands in the hope of reaching an easier settlement, only to find that the abuser continues to exert control and make more demands. This can replicate the dynamics of abuse and severely disadvantage the woman and her children.

The abuser may still subject the woman to threats, coercive control and physical violence, leaving her fearing for her own safety and her children’s safety. When a woman has been previously raped or assaulted, it can be very difficult for her to speak up about her needs or her fears in front of the abuser in the mediation process. Even in shuttle mediation (where the mediator goes back and forth between the parties, who are in separate rooms), if the woman’s reports or requests are communicated to the abuser, she may be placed at risk of further abuse or harassment.

Women often fear that they will not be believed because the abusive partner can be very charming and convincing. Abusers often threaten that they will get or take the children if the woman does not give up her financial rights. This can be a deadly combination for a woman, who may assume her partner’s version of events will be given more credibility than hers and will do everything she can to make sure she maintains primary responsibility for the children.

If the ADR professional does not have extensive experience and knowledge in the field of woman abuse, there is a danger that they will minimize the woman’s report of violence and the ongoing safety risks. In addition, they may not appreciate the impact of parenting arrangements on the ongoing safety of the woman and the children.

This does not mean that ADR is never helpful in woman abuse situations, but women must be aware of the risks and the importance of choosing a professional with training and experience with woman abuse cases.

Where the abuse has been ongoing over a period of time, ADR is less likely to be an appropriate option.