Legal Process Options
Process options include:
Let’s take a closer look at the options couples face when separating.
Negotiation between spouses
This is the “kitchen table” option, where spouses choose not to retain lawyers at all, preferring to settle all issues themselves. This option must be approached with a great deal of caution, particularly for spouses who have less power, control or money in a relationship. What is being left out of an agreement, or what is being given up because the spouses don’t know their rights or the law as thoroughly as a lawyer? Most lawyers, for liability reasons, choose not to be involved with an agreement drawn up between the spouses, so it can be difficult to try to get a lawyer to sign off on what you’ve done. Remember that you are structuring the rest of your lives for yourselves and your children. Professional involvement at this critical stage of your life could be one of best investments you will ever make.
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Going to Court
This option includes negotiations between lawyers because if an agreement is not reached, it is likely one side will launch a court application.
Lawyers are trained to get the best outcome for their client. To do this in the court system everything from the first meeting to all the correspondence and to all court documents are structured with the possibility in mind that the outcome may have to be decided in court, even though most cases settle before a trial. As a result the parties take positions and lawyers keep their cards close to their chest, constantly strategizing in the hopes of winning for their client. This occurs even in “friendly” negotiations before court papers are filed.
When court papers are prepared, the parties’ positions often become entrenched. They make allegations and say things about each other which often result in each side further digging in their heels. Then the game is afoot
Do you want your settlement scratched out in handwriting on a busy, pressure-filled court day while your lawyers are bouncing between clients and the judge? Or would you rather sit down in a quiet meeting room, give all your issues the attention they deserve, and reach an amicable and long-lasting agreement that meets all your needs?
Do your lawyers understand your issues as well as you do? When they talk to each other about your issues are you there to answer questions, explain the reasons for your positions, or offer other options?
The court system is poorly suited for dealing with family law issues. That solution does not really fit the problem, except for the small percentage of cases where there is no other option.
Going to court is absolutely the most expensive option, and in many cases the least satisfying for clients.
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Legal Consultant
Some people are already in the court system, and are self represented or can no longer afford a lawyer. If you can't afford to retain a lawyer to be "on the record" but need someone to go to for occasional advice or guidance, or even to speak for you occasionally or to assist in settlement, Dave offers a legal consultation service. This way you can represent yourself but have a lawyer accessible when you need it.
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Mediation
Mediation is a process whereby a neutral person assists the spouses in negotiation a resolution. It is completely voluntary. Unlike the public court system, it is private.
Normally lawyers do not take part in the meetings, though this can happen if the parties prefer. It is recommended that each party have legal advice before beginning the mediation, and at the end of mediation when an agreement is reached. It is also recommended that each party retain a lawyer trained or knowledgeable in collaborative law or mediation, since they are more likely to understand the mediation process and to allow the client to direct the outcome.
Mediation entails full disclosure, both financial and otherwise. Other professionals such as experts or appraisers can be retained as needed.
One of the mediator’s jobs is to ensure that the parties can negotiate on an equal footing. A history of abuse or controlling behaviour may rule out mediation in some cases, but there may also be ways for mediation to proceed provided that the parties are safe and can freely assert their interests.
Where children are involved, the mediation will always be child-focused. The mediator or another person may meet the children so they can have some input too.
Mediation, unlike the court process, is not adversarial. You and your spouse will improve your communication and problem-solving skills. You can talk directly to each other and work together as part of a team to directly influence the outcome and decide your future.
You and your spouse, not your lawyers or a judge, direct the process and decide the outcome.
The parties or the mediator can terminate the process at any time, following which the parties can go to court if necessary.
The cost of mediation will include the cost of each spouse’s lawyer for independent legal advice at the beginning and end of the process, and the mediator’s hourly rate which is shared between the spouses. The number of mediation meetings will be determined by the complexity of the issues and how long it takes to reach agreement.
Click to see a sample mediation agreement.
For more information on family mediation:
www.oafm.on.ca
www.adrontario.ca
To see if you qualify for subsidized mediation in the Peterborough, Haliburton, Northumberland or City of Kawartha Lakes area, go to www.familycourtmediation.com.
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Arbitration
“Arbitration” is defined as the settlement of a dispute by an impartial third party who is normally but not always chosen by the parties. The parties agree to be bound by the arbitrator’s award after a hearing at which they are each given the chance to be heard. Arbitration is often used as a means of resolving labour or commercial disputes. (from “The Arbitration Practice Handbook”, ADR Institute of Canada Inc., March, 2006)
Unlike mediation where the mediator has no decision making authority, in arbitration the arbitrator will make a binding decision on behalf of the parties. The decision of the arbitrator is final and enforceable, and can only be appealed on limited grounds.
An arbitrator can be appointed under the terms of a separation agreement or other contract, many of which provide for arbitration when disputes arise in implementing the agreement. Parties can also voluntarily submit to arbitration.
At the beginning of the process, an arbitration agreement will be signed which will govern the conduct of the arbitration. In Family Law arbitrations, the arbitrator must also ensure the parties are screened for domestic violence.
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Mediation/Arbitration or Med/Arb
“Mediation/Arbitration” (Med/Arb) may be defined as a well-recognized legal term of art referring to a hybrid dispute resolution process in which the named individual acts first as a mediator and, failing agreement, then proceeds to conduct an arbitration.” (from Marchese v. Marchese, (2007), 219 O.A.C. 257, Ontario Court of Appeal)
In Med/Arb, when an impasse is reached during the mediation phase, the parties authorize the mediator to become the arbitrator, hold a hearing, and issue a binding decision in writing.
The main advantage of Med/Arb is that finality is assured in a relatively short time frame. The main disadvantage is the inherent conflict between the two roles. However clients tend to prefer that the two procedures be conducted by the same person in the interests of saving time and money. Dave Curtis is of the view that the process can be conducted fairly, and that it can be applied to many disputes.
Dave would be pleased to discuss arbitration or med/arb with your lawyers, but his policy is that if any form of arbitration is to be discussed, it must be discussed with both lawyers together in a meeting or a telephone conference call in order to avoid any appearance of bias.
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Collaborative Family Law
This process is something like mediation, but with both your lawyers present. This way you have legal advice as the negotiations unfold. The spouses must retain lawyers trained in collaborative law, and the lawyers and clients all agree to resolve the issues without going to court.
This process will only work if both lawyers fully subscribe to the process and allow the clients to remain in control. If the lawyers don’t “get it” the process could fail. Don’t be afraid to ask the lawyers about their experience in collaborative law and whether they have taken both levels of training.
Like mediation, there will be full disclosure and the process will be child-focused if children are involved. The lawyers will use mediation techniques to assist the parties to communicate, and like mediation the parties drive the process and determine the outcome.
Most of the work is done in the joint meetings, and other professionals can be brought in as necessary to complete the team.
The cost of collaborative law will include the cost of two lawyers throughout the process, and as a result may potentially cost somewhat more than mediation. However some people appreciate having their adviser present throughout.
If the collaborative process does not result in an agreement and the parties decide they have to go to court, they must retain different lawyers to do so. Or, they could agree that the one or two issues in disagreement can be arbitrated.
Click to see a sample Collaborative Family Law Participation Agreement.
For more information on Collaborative Family Law, or to find a lawyer:
www.quintecollaborativelaw.org
www.collaborativelawyersdurham.ca
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