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Which Legal Process is Right for Me?

Part 1: Your Options

Choosing the process by which to resolve your family law matter is often the most significant decision you will make when going through a separation. The choice can dictate how much time is required to reach a determination, how specific that determination will be, and how much money will need to be spent by both parties to get there. Going forward, the decision can influence family relationships and plans for retirement, among other important factors. The following is a list of options for resolving your family law matter.

Negotiation or the “Kitchen Table Approach” 

This process involves both parties sitting down together to try to reach an agreement on their own. If you have a respectful relationship with your former partner and still communicate well, this approach allows you to work together to create a parenting plan, divide any assets and debts, and sort out any support issues. Each party takes responsibility for obtaining their own legal or professional advice regarding the agreement, and then one party’s lawyer drafts a consent order or a written separation agreement.

Lawyer Assisted Negotiation

This process involves each party hiring a lawyer to represent them. The respective lawyers then negotiate a settlement based on the law and the specific circumstances of the parties. These negotiations may occur over the phone, in person or by way of letter.  They may also occur at a “four-way meeting”, which is where the two lawyers and the two parties sit down in a room together and try to resolve the issues. If an agreement is reached, it is finalized in either a consent order or a written separation agreement.

Collaborative Law

Collaborative law is a process in which the parties, their lawyers, and an assortment of separation professionals such as Divorce Coaches, Financial Specialists, Child Specialists and Business Valuation Experts work as a team. An agreement is made at the outset to resolve matters without going to court. The collaborative professionals provide a holistic experience and assist parties in reaching a comprehensive agreement that addresses the values and goals of the parties and their children. If an agreement is reached, it is finalized in either a consent order or written separation agreement.

Mediation

This process involves a neutral third party, referred to as a mediator, who assists the parties in resolving the issues surrounding their separation. The mediator does not make any decisions for the parties, but rather facilitates them reaching an agreement on their own. Mediations can take place in one day or over several days. Parties may attend with their lawyers or by themselves. Former spouses that attend mediation alone are encouraged to seek legal advice after the session and before signing any formal agreements. The cost of the mediator is usually split equally by the parties and the process is confidential.  If an agreement is reached, it is finalized in either a consent order or written separation agreement.

Mediation-Arbitration

This process involves a professional who is trained both as a mediator and an arbitrator and is enlisted to help the parties reach an agreement. They will first assist the parties in reaching an agreement on their own. Should the parties not be able to resolve all of their issues with the assistance of the mediator, the mediator will then become an arbitrator who can make a binding determination on the outstanding issues. Like mediation, this process is confidential. The agreement or determination are written up in either a separation agreement, a consent order or an arbitration award.

Court

This process involves one party filing a document in court to commence a legal action.  Depending on the issues to be determined, this could occur in either provincial or supreme court. Read more about deciding which court to choose here. From there, the other party must respond and there are a series of rules and steps that must be followed. The courts prefer that family matters be resolved without their intervention, so some of the preliminary steps are designed to encourage parties to settle their issues without going to trial. Trial can be an extremely stressful and financially taxing experience and can last anywhere from one day to multiple weeks. The courts are required to follow precedents and will make binding decisions based on evidence, however a Judge’s final decision may be appealed. The decision is formalized in a court order. Usually, parties are able to reach an agreement with the assistance of lawyers or mediators before the matter progresses to the trial stage.

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