Dispute Resolution in Family Law: What to Expect

Collaborative Law

What is Collaborative Law?
Collaborative law is a revolutionary way of resolving matrimonial disputes in a respectful manner, without going to court. Using the collaborative law method means that both parties are committing to resolving their dispute in a respectful, honest and open manner, with full disclosure and cooperation. Collaborative law focuses on creative problem solving and mutually acceptable solutions. It is premised around a commitment to exploring various options to come to a resolution without going to court and without the adversarial positioning of more traditional dispute mechanisms.

How does it work?
In a collaborative law case, both parties retain their own collaboratively trained lawyers. The parties then enter into a participation agreement which contains certain standard guidelines, including civility to each other, cooperation in producing necessary documents, working together in good faith and agreeing not to threaten court or go to court during the collaborative process. There may also be agreement on using certain neutral experts such as parenting coaches if there are issues or disputes regarding the children or financial advisors if there are complex business or other financial issues. The participation agreement also states that if either party seeks court intervention to resolve their issues, both parties must get new lawyers to represent them. The parties and their lawyers meet regularly to move matters forward productively and to resolve any pressing issues which may arise in a timely way. At the end, the desired result is a signed Separation Agreement which represents a fair, and mutually acceptable resolution of the issues.

What are the benefits?
The benefits of collaborative law are numerous. First, by engaging in a non-adversarial, respectful process, this is far healthier and helps to maintain positive parenting and other familial relationships in the long run. Furthermore, collaborative law tends to be far less costly then court; tends to result in far faster resolutions, and keeps lines of communication open on urgent or pressing issues so the parties and their lawyers can work together to find a creative and suitable solution to resolve them expeditiously. By using collaborative law, people tend to walk away with an agreement that they each feel is fair and appropriate to their specific circumstances. This is also a far less stressful way of resolving disputes than court, which can be lengthy, extremely expensive to all, and unpredictable.


What is Mediation?
Mediation is when two parties, either with or without lawyers, commit to trying to resolve their dispute using a mediator. A mediator is a neutral third party who will work with the two parties in dispute in order develop a settlement agreement. The mediator, acting as a neutral party, will explore various options for settlement without taking a position or siding with either party, to try to come up with a mutually agreeable compromise.

How does it work?
First, the parties will choose a mutually acceptable mediator. The mediator will then conduct a mediation. Most mediators require mediation briefs or other documents to be provided to them prior to the mediation so they can prepare for the mediation beforehand. During a mediation, both parties may be brought together in order to work on an agreement or a mediator may go back and forth between the parties in separate areas/rooms with proposals in order to reach an agreement. If an agreement is made, the parties will sign a settlement agreement

What are the benefits?
The benefits of mediation are numerous. Mediation is much less expensive than litigating a matter. Furthermore, having a good mediator can readily help parties who are stuck on certain issues come to a compromise. The mediator’s ultimate goal is to try to settle a matter. Mediation can also be done relatively quickly, compared to the traditional court model, which is dependent on the court’s availability – which often means months before a first court date is even obtained. Mediation is also relatively simple in that there are no complicated procedural or evidentiary rules. Mediation allows for creative problem solving and negotiating. Having a neutral third party who is familiar with the law is often very beneficial in getting parties to a middle ground, or some sort of compromise without the expense and risk of court.

Traditional Negotiation

What is Traditional Negotiation?
Traditional negotiation generally involves two parties trying to negotiate a resolution of their disputes directly or through counsel.

How does it work?
The parties may each retain a lawyer, and the lawyers will require certain disclosure. Once that disclosure is exchanged, offers can be presented, 4-way meetings can be held and various other ways of negotiating can take place. The lawyers will look at the disclosure, make recommendations to their clients in accordance with the law, and then engage in negotiations on the issues in accordance with their client’s version of events and the applicable law.

What are the benefits?
The benefits of traditional negotiation, if full disclosure is exchanged in a timely way and both parties and the lawyers are reasonable and cooperative, is that matters can be resolved efficiently and without the necessity of court, which is often far more expensive. The end result of successful negotiations is often a Separation Agreement which would then set out the terms of the parties’ agreements on the issues, would be binding like any other contract, and enforceable by a court.


What is Litigation?
Litigation is when one or both of the parties in a dispute decide to take their matters to a judge. This means that a judge or more than one judge will make recommendations, and decisions on the various issues, rather than the parties negotiating the matters themselves. In family law, this means issuing a court application and other documents as mandated. The court system has very specific rules in terms of what has to be issued and served, how things are to be served, and how the process is governed. At the end of the day, even during litigation, matters can be resolved without a judge making a final order. However, if negotiations are unsuccessful, the end result will be a judge making final orders on all of the issues in dispute after hearing all of the evidence and considering the relevant law on the issues.

What are the risks?
There are numerous risks of litigation but some of the more prevalent ones are: 1) Litigating a matter is often extremely expensive; 2) Litigation can take years to result in a final resolution; 3) There can be delays depending on the court’s availability and the parties’ and lawyers’ availability; and 4) Most importantly, the solution imposed by a judge can be unpredictable and outside of both parties’ control. The end result is that a third party judge who has never met you or your family prior to a trial will be making the final decisions on issues that will impact you for the rest of your life.

When is it necessary?
Litigation may be necessary when there are urgent issues such as a child being removed; abuse; or urgent financial issues. Litigation can also be necessary if a party is not cooperating or responding to get issues resolved, or the parties simply cannot agree on a resolution of their issues without a third party making formal orders that are then enforceable against the parties in a court of law.