Dispute resolution methods can be traditional or collaborative
By AdvocateDaily.com Staff
While the majority of family law cases end up settling before the trial stage, many couples still begin the separation process without an understanding of how to most efficiently resolve their legal issue, St. Catharines family lawyer and mediator Sharon Silbert writes for the Legal Aid Ontario blog.
In the blog post, Silbert touches on the following processes: “traditional” legal negotiations, collaborative family law, mediation, and adjudicated outcomes.
“In ‘traditional’ legal negotiations, the parties’ lawyers do the negotiating, exchanging proposals until an agreement is reached,” she writes. “Sometimes this is done exclusively via correspondence, and sometimes settlement meetings take place where the clients and lawyers meet face to face.”
If the parties are unable to reach an agreement, either party may initiate court proceedings, and the same lawyers that were involved in the negotiations can represent the parties in family court, writes Silbert.
Collaborative family law is one example of an effective alternative to the traditional approach to lawyer-led negotiations, says Silbert.
“In the collaborative process, the family law issues are typically resolved through a series of settlement meetings during which the clients and the lawyers work to identify each person’s priorities and interests, and generate options to meet their needs,” she writes. “Negotiations may also include the participation of neutral professionals like financial or child specialists hired jointly by the parties.”
Another process, mediation, would see the separating couple negotiate directly with the assistance of a dispute resolution professional called a mediator.
“The mediator will help the parties to work together in a constructive way, encouraging them to communicate respectfully and act in good faith,” writes Silbert.
“A mediator is not like a judge who can make decisions, but rather acts as a facilitator to help the separating couple make those decisions for themselves. Even if the family mediator has a legal background, he or she cannot give legal advice because to do so would compromise his or her neutrality. As a result, the participants either consult their lawyers periodically throughout the mediation process or, in some cases, may bring their lawyers to the meetings.”
After an agreement has been reached in mediation, says Silbert, the mediator prepares a summary of its terms, which then goes to the parties’ lawyers for review.
Parties will then sign a separation agreement prepared by the lawyers, she adds.
“When both parties are motivated to work together in good faith, mediation tends to be faster and less expensive than other processes because the separating couple does much of the work involved in working out an agreement for themselves, and their lawyers are less actively involved in the negotiations,” writes Silbert.
When it comes to adjudicated outcomes, Silbert says a third party — like a judge or arbitrator — will make final decisions in the case.
“Sometimes an adjudicated outcome is necessary because an agreement cannot be reached,” she says. “Starting a family court proceeding is also the only way to move forward in circumstances where one person is unwilling to participate in negotiations at all.”
Court proceedings do not require co-operation between the parties, but they can be expensive and time-consuming, and can often contribute to an escalation of the conflict, writes Silbert.
“The parties do not have any control over the outcome, and the decision-maker is often constrained in his or her decision making by the evidence available, the time and resources of the court and/or the parties, and the applicable laws,” she says.