When encountering marital difficulties, we often only consider the use of lawyers because this traditional approach of litigation is all that we are familiar with. However, there are alternatives which may often be more suitable.
Family law is very different from other types of law in that the parties have to continue to work together after the dispute has been resolved. The legal system can encourage each side to take positions which can be counterproductive in family matters. Mediation and Collaborative Law are not only alternatives but can also be considered additions to the court room process; more easily resolved matters can be dealt with through mediation or collaborative law, leaving the more thorny issues for litigation.
Family mediation involves one mediator who acts as an independent third party to facilitate the resolution of a couple’s separation issues. Before and/or during the mediation process, it is still important for the parties to seek independent legal advice so that they are aware of their rights and obligations. In mediation, the goal is to find common ground from which to begin negotiations so that solutions may be reached where both parties feel their needs and those of their children are being met. In mediation, the parties control the process and design their own agreements with the guidance of the mediator.
The mediation process begins with the mediator meeting with each of the parties separately. Next, joint sessions with the mediator and the couple take place. Sometimes, if the individuals are not comfortable in the same room, the mediations can be carried out with the parties in different rooms and the mediator moving back and forth between them. Usually, the entire mediation consists of no more than six joint sessions and often can be as brief as two.
Upon completion, each party and their lawyer will review the Separation Agreement. Once the Agreement has been signed by both parties and witnessed, it is a legally binding agreement, enforceable by the courts.
- Cost effective – Mediation costs are a mere fraction of litigation costs.
- Saves time –Minimizing the length of the process can save the couple and their family a great deal of stress.
- Develops communication skills – The parties learn the principles of effective negotiation and communication allowing them to make their future dealings with each other less stressful and more productive.
- Creates sustainable results – Since the parties can take control of the process and accommodate their unique needs, the agreements reflect the individuality of their lives.
The Ontario Association of Family Mediators certifies the competence of family mediators in Ontario by providing accreditation.
Collaborative law is another dispute resolution model that is wellsuited for family law issues and has many of the same advantages that mediation offers. In this model, separating spouses along with their specially trained family lawyers negotiate amongst themselves to develop mutually agreeable arrangements in a respectful and open environment. Before the collaborative law process begins, you and your spouse and both collaborative lawyers sign a contract not to go to court; the threat of litigation is therefore removed. The structure of the meetings tends to be 4-way discussions between the parties. If necessary, other professionals such as mental health or financial specialists can be brought into the process. Once the parties have reached an agreement, then one of the lawyers drafts a Separation Agreement which can then be signed by both parties so that the agreement becomes binding.
The collaborative law approach can be somewhat more expensive than mediation since there are two lawyers involved and sometimes other professionals, but it still remains much cheaper than resolving matrimonial disputes through the courts.