Process Choices


Collaborative PracticeWhen a marriage or relationship ends, couples have various process options to choose from to resolve parenting arrangements for children, a division of property, support for children and spouses, and all related matters. Which process is appropriate depends on whether parties can work out their agreement on their own, whether (like most people) they need professional assistance to do so and if so, what assistance, or whether they need a judge or arbitrator to decide the outcome for them. The process options include:

The Kitchen Table Negotiation

Some couples can sit down together, discuss and resolve their issues on their own. This works for people who communicate well, have a reasonably low level of conflict and high level of trust. Usually their issues are straightforward and their marriages short. This is not advisable when the issues are complex, such as dividing pensions or businesses, or if the parties do not feel equally able to negotiate. It is wise to obtain a legal consultation before the negotiation and to have a lawyer prepare the written Separation Agreement or at least review and provide advice on any agreement before it is signed. It is possible for couples to settle some issues themselves and require help for the rest.

Mediation

Couples work together under the guidance of a neutral mediator to seek mutually acceptable settlements. The mediator can be a mental health expert (for parenting arrangements) or a lawyer (for financial matters and perhaps parenting). The mediator will help the parties decide the issues they want to resolve, communicate effectively, articulate what is important to each, gather all necessary information, create a number of options for settlement and choose the option that works best for both. Some mediators follow a facilitative, interest based approach (helping the couple create their own agreement taking into account their goals and interests as well as their legal rights) . Others follow an evaluative approach (providing opinions based on legal rights and entitlements ).  In Ontario, couples usually attend facilitative mediation sessions without lawyers, although it is recommended they be represented by lawyers during the process. The facilitative mediator will give legal information but not not give legal opinions and will send the parties to their lawyers for independent legal advice before any agreements are finalized and signed. Some mediators will draft the legal agreement, others prepare only a summary of terms and request the lawyers draft the agreement. The mediation process can help couples improve their capacity to communicate and coparent effectively after divorce.

Collaborative Practice

Each spouse retains a Collaborative Lawyer who has been trained in the collaborative process, effective communication and principled negotiation skills. The clients and the lawyers sign a Participation Agreement in which all commit to negotiate in good faith, treat each other with respect, exchange all important information, put the children first, and look for solutions acceptable to both parties. The contract provides that these lawyers are retained solely to facilitate settlement and will not go to court. Negotiations take place in a series of settlement meetings in which the lawyers provide conflict resolution advocacy, legal information and advice and maintain a safe, balanced negotiation environment. When needed other professionals, such as Financial and/or Family Professionals, are retained. If experts are needed for valuation or other purposes, they are jointly retained. The collaborative process provides a holistic approach to resolving all of the legal, financial and emotional issues that come with separation and divorce, in a principled way, following established protocols without the threat of court. It provides each spouse with the support of their own lawyer every step of the way.

Negotiation by Traditional Lawyers

Each party retains a lawyer who will negotiate for his or her client. Most of the work is done between the lawyers, by letter or phone, without the clients present. Each lawyer will attempt to get the best settlement for his or her client, based upon legal entitlements and obligations. If experts are necessary to value an asset or provide an opinion, each side usually hires and pays for his or her own expert. The lawyers may arrange a settlement meeting at some point in the process. Either side may go to court at any time and will go to court or arbitration if negotiations break down.

Arbitration

Issues which parties cannot settle themselves can be referred to a respected, senior family lawyer for efficient, private resolution. The parties decide the issues to be determined, how formal or informal the process will be, whether evidence will be given in person or in writing, whether or not lawyers will attend, and the time and date of the hearing. The decision made by the arbitrator follows legal rights and entitlements and is binding on the parties, subject to certain rights of appeal. This process is usually faster than court. The parties pay the arbitrator’s fees and the arbitrator may assess costs at the end.

Court

Couples who cannot resolve their dispute themselves, or who believe they will not be able to do so, and do not wish arbitration, can bring a court proceeding. Parties to litigation must follow court procedure, which requires filing documents and taking steps according to prescribed rules. Settlement conferences will be held by judges and matters which are not settled will be decided by a judge. The time and cost of a court proceeding is difficult to predict, but it usually takes much longer and costs more than out of court processes. Court actions are public. The allegations, affidavits and evidence provided in a court action often harm relationships between parties, diminishing their capacity to coparent in the future. Conflict in the family is known to harm children more than the divorce itself.