October 16, 2013 By: Marta Siemiarczuk
Print

You've separated from your spouse, now what? The questions just keep coming, what will you do? Where will your kids live? How will you divide your property? Who is going to pay for what? There are so many things that need to be resolved, and going to court is just not on your radar. It also may not be something you have the stomach for. It's ok. You may have other options. In this article we have outlined some of the options available to help separating couples like you and your spouse resolve their issues outside of court.

Negotiation

Negotiation is probably the most flexible method of dispute resolution available to separating couples. People often question whether they can just come to a direct agreement with their spouse on how to finalize all of the issues that arise out of a separation. The answer is, "of course". While Ontario's Family Law Act provides a default of people's rights and obligations which arise out of a separation, there is nothing stopping separating couples from reaching their own agreement. This can be done directly with your former spouse or with the assistance of lawyers. Even if you find yourself in a court proceeding, you can still negotiate a settlement and resolve everything without the need to have your dispute resolved by a judge.

It is always wise (and recommended), to get legal advice before agreeing to anything in a separation. There are many complex situations that can arise from the breakdown of a relationship and you should know your legal rights and obligations before agreeing to or signing anything.

Mediation

Mediation is another flexible dispute resolution process that I often recommend to clients. Mediation is a process that has to be agreed upon by both parties. Mediation is a way to facilitate negotiation between separating spouses, and will only result in a binding agreement if both parties agree that the terms arrived at meet their needs. Mediation is typically conducted by another lawyer, trained as a mediator, who facilitates the negotiation. Sometimes it can also be conducted by another professional, such as a mental health or financial professional, depending on the issue(s) in dispute.

In order to begin a mediation process, the parties need to agree on a mediator. Once that is done, the parties, their lawyers (if lawyers are involved in the mediation) and the mediator typically sign a confidentiality agreement confirming that nothing said or disclosed in the mediation process can be shared with third parties or used against the other party (for example in court) if no agreement is reached. This is known as a "closed mediation". If a resolution is not reached, the mediator cannot be asked to divulge anything that happened during the process, nor can the parties. Conversely, in an "open" mediation process the same confidentiality rules do not apply. This type of open mediation is rarely used, and is typically reserved for very particular situations.

Mediation takes the form of a negotiation, usually with all parties in one room; although it can be done in separate rooms as well; and the discussion is facilitated by the mediator. The mediator is always someone who is neutral. They cannot take sides or provide any legal advice to the parties. Despite the fact that your mediator may be a lawyer, it is always best to ensure you have your own lawyer who can provide you with guidance and advice throughout the process. Some disputes can be resolved in a single mediation session, others take longer. The process is tailored to the specific issues that need to be resolved, and each party's ability to address the issues. Just like regular negotiation, it has the flexibility of ensuring that your dispute is resolved in a way that meets your needs with certainty, rather than leaving it up to a third party Judge to decide.

Collaborative Family Law

Collaborative Family Law is an alternative to a court process or to traditional mediation. It is a flexible negotiation process where both spouses retain lawyers who are trained and certified to practice collaborative family law. This process emphasizes the parties' ability to maintain a respectful relationship after the dust settles.

A collaborative process is one where all of the negotiations are conducted by face to face meetings between the parties and their lawyers. The lawyers involved have two roles. Their primary role is to provide legal advice and guidance to their respective clients. Second, they work collaboratively together in order to facilitate the negotiations, and ensure that the needs of both parties are being addressed throughout. Quite often, a collaborative negotiation will involve using the expertise of financial and/or mental health professionals, particularly if there are parenting issues involved.

In order to engage in a collaborative process, all of the parties and their lawyers enter into a binding agreement to conduct a collaborative negotiation. The agreement will specify that both parties agree to full and frank financial and other disclosure relating to all issues that are the subject of the negotiation. In addition, and most fundamentally, the parties agree that they will not go to court. If one party threatens to go to court, then normally the process must end. If a process ends because one party decides to pursue a court process, both parties need to retain new lawyers who have not been a party to the confidential negotiations held between the parties during the collaborative process.

The collaborative process, just like most mediation processes, is confidential and nothing discussed or said during a collaborative negotiation can be used by any of the parties outside of the process.

Private Arbitration

Not all disputes can be resolved with a negotiated agreement. Some disputes simply need someone to make a binding decision. Using the traditional court system can be very lengthy, costly and invasive, as all of your personal information becomes public record. This is unpalatable for many people. Arbitration is an alternative to the traditional court process, which still carries the benefit of having a decision made where an agreement cannot be reached.

Arbitration must be agreed to by both parties, and it will result in a binding decision being made by a third party arbitrator who the parties have jointly agreed will hear the case. Normally, the arbitrator will have expertise in family law. The parties share the arbitrator's fees on an up-front basis. Most arbitration processes empower an arbitrator to apportion legal fees at the completion of the arbitration by awarding legal fees (including the arbitrator's fees) to the successful party. However, this is governed by the Arbitration Agreement entered into by the parties and their arbitrator.

Arbitration is similar to a court process in that evidence will be given, and witnesses may testify. However, unlike a court process, it is private. Hearings are typically conducted in a confidential setting so that your dispute is resolved privately and personal information does not make it into the public record. Arbitration can be done with or without the assistance of lawyers, although it is usually preferable to have the assistance of a lawyer. This is because much like in court, it is a process that involves significant advocacy and understanding of the law, which can make it difficult to navigate.

While our courts are often backlogged, and it can take up to two years (or in some cases, even more) to bring a case to resolution, private arbitration has the benefit of flexibility in timing, and can yield a final result in a short period of time. Of course, that is not always the case, but the parties are much more in control of timing as well as general process. While arbitration can sometimes be much less costly than the court process, that is not always the case, and the nature of the dispute will certainly impact the costs associated.

Getting Help in Choosing a Process

Before starting down the path of any dispute resolution process; whether it is a court proceeding or one of the alternative processes outlined here; it is important to speak with a family law lawyer.

Knowledge is always a very powerful tool. You should have an understanding of the legal implications of the issues that form part of your dispute and need to be resolved before you choose a dispute resolution process. For any process, particularly one that involves negation and a "give and take", it is also important to have a clear understanding of your rights and obligations if an agreement is not reached.

A good family law lawyer can be of great assistance in choosing the dispute resolution process that will work best for you and your family, as well as the specific issues that need to be addressed.

Marta Siemiarczuk is a member of our family law practice group. She can be reached by emailing marta.siemiarczuk@nelligan.ca or by calling 613-231-8281. For more information on family law issues, click here to view our services, or click here to view our Family Connection blog.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law