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OPTIONS

Ethical lawyers will work pro-actively with you to identify the point at which returns outweigh the costs, and find a plan for alternative approaches. Some lawyers will simply take instructions to fight for a point for as long as they get paid.

Courts can usually only provide outcomes available in printed laws, which means that the court cannot be flexible or creative in reaching solutions to the extent that the parties can be in their own negotiation or mediation. Sometimes you have to start in court but finish outside of court. That's why it's helpful to have a lawyer who can be assertive when appropriate, but who can also be a conciliatory and effective negotiator. You need someone who has more than one tool in their legal toolkit.

Family mediators have different subject specializations, different philosophies and different strengths. If you're mediating some or all of your dispute, it is also helpful if your lawyer has the experience to select and guide you to one or more mediators specialized in the disputed areas of your separation.

With Collaborative Family Lawyers, you should ask to see their proof of completion of Level 1 and 2 training.

NEGOTIATION:

 

If your lines of communication are good, you can negotiate directly with your spouse.

If not, you can negotiate through your lawyer.

The usual objective is to reach a legally binding contract called a separation agreement.

PROs

The parties remain in charge of the process there is no decision-maker.

Greater flexibility than court.

Faster than having the dispute decided at a trial.

Dispute is handled privately.

 

MEDIATION

 

 

 

Mediation is process whereby a trained professional facilitates a negotiation of the issues.

Parties must jointly select a mediator together.

The parties can decide to attend mediation either with or without their lawyers.

Ultimately, each spouse should have legal guidance outside of mediation.

Even if the mediator is a licensed lawyer, the mediator may not and must not give legal advice.

Costs are also managed by jointly paying the mediator's fee.

The parties remain in charge of the process there is no decision-maker.

Sometimes more than one specialized mediator is retained, e.g., one mediator to deal with parenting, and one mediator to deal with dividing/equalizing property.

The usual objective is to reach a legally binding contract called a separation agreement.

PROs

The parties have control of the process and outcomes: there is no decision-maker.

Greater flexibility in reaching outcomes and agreements for the benefit of both spouses than in a court process.

Faster than having the dispute decided at a trial.

Dispute is handled privately.

CONs

Either party can retreat from the process at any stage prior to signature of the contract, without consequences.

 

COLLABORATIVE FAMILY LAW

 

 

Collaborative Family Law (sometimes called CFL) is a specific technique of dispute resolution. In CFL, the spouses and their lawyers commit to a process of resolving the dispute without going to court.

Both spouses are represented by specially trained lawyers and all parties negotiate based on interests and not based on legal positions.

The usual objective is to reach a legally binding contract called a separation agreement.

PROs

The parties have control of the process and outcomes: there is no decision-maker.

Cheaper than court because costs are also managed by jointly retaining necessary advisors, e.g., counsellors or financial advisors.

Greater flexibility than court.

Faster than having the dispute decided at a trial.

Dispute is handled privately.

CONs

More expensive than negotiation, less expensive than trial.

Parties must hire two different lawyers if the case must forward through the courts.

 

ARBITRATION

 

 

 

Arbitration is a process of hiring a qualified neutral third party to rule upon your dispute.

Parties must jointly select and pay for the services of an arbitrator.

Costs are lower than having the dispute heard in court.

The party's sign an agreement that the decision will carry the weight of a court order.

The process resembles a court proceeding.

PROs

Faster than having the dispute decided at a trial.

Dispute is handled privately.

Costs are lower than having the dispute heard in court.

CONs

Costs are higher than negotiation/mediation/collaborative family law.

The parties do not have control of the process or of the outcome.

 

TRIAL

Often the only way to get one spouse to accept their obligations is to commence a court action.

Many matters are well-suited to the less expensive early stages of court proceedings.

The emotional costs also take a toll on everyone, and this is a consideration especially if there are children.

However, if the matter fails to settle before reaching trial, legal costs can escalate quickly. 

PROs

Once a file is started in court, it can be resolved informally outside of court by any means the parties agree upon.

The threat of court as an alternative provides incentive to an unwilling party to pursue one of the less formal, less expensive options before the court sets a trial date for your file (which is usually 18-24 months after the first court filing).

CONs

Costly.

Formal.

Lengthy.

Risky: the parties do not have control of the process or of the outcome.

Public: Details of the entire dispute are on the public record.

The parties can only retreat from the trial process if they succeed in settling outside of court.

Psychologically damaging to those involved, especially children.

 

 

 


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