Experiencing a separation is never easy. When a relationship breaks down, there are many issues that need to be resolved, such as deciding whether the family home will be sold or bought out by one party, dividing or “equalizing” the family property, setting a parenting schedule for the children, and figuring out whether one party should be paying child or spousal support to the other. Typically, all these decisions are being made at a time when emotions are high. The circumstances of the separation may have left one spouse (or both) hurt or angry, and whatever the circumstances a separation is a significant life transition that is often difficult to get through. There are many ways in which spouses can work through their family law issues, and all these options and tools will impact on how long the issues take to resolve, how expensive the process is for the client, and of course the emotional toll the process takes on the client.
Separation Agreement vs. Court Order
For most files, the goal is to negotiate a Separation Agreement, which is a written contract between spouses, setting out all the terms of their separation. Negotiating a Separation Agreement is typically more cost-effective than commencing a court proceeding seeking a Final Order. Depending on the file the process is also more amicable by nature, as the goal is to reach an agreement with the other party not to convince a third party to accept your position. Although negotiating a Separation Agreement is often cheaper than litigating, if spouses are embroiled in conflict or far apart in their position’s costs can still become excessive, as lawyers spend increased time exchanging information and negotiating issues. The process of negotiating an Agreement can also sometimes “drag on”, depending on how far apart the parties are, and how motivated each party is to bring the file to a resolution.
Sometimes it is more logical for a client to seek assistance from the Court in resolving their family law dispute, for example if there are urgent / time-sensitive issues that need to be resolved quickly, or if other methods of dispute resolution have been ineffective. Litigation involves one party commencing an “Application”, which involves filing pleadings that tell the Court what Final Order they are seeking, and the important evidence they will present at trial to support their arguments. The other party then has the same opportunity to file pleadings and tell the Court what Final Order they will be seeking, and why. Family law litigation involves multiple “conferences” – appearing before a judge to deal with disclosure, procedural issues, and receive some feedback from the presiding judge about the merits of your case and outcome at trial, in an effort to assist the parties in reaching a resolution outside of Court.
As the litigation is unfolding, either party can request a Temporary Order (an Order which remains in place until a trial or some other event) by bringing a Motion. A Motion involves both parties submitting their evidence in the form of written “Affidavits”, and the parties (or their lawyers) arguing the issue before the court, with the presiding justice making a decision. The cost of litigation varies from case to case and is impacted by how long the case takes to resolve, how many issues there are to resolve, how complicated those issues are, and how “reasonable / flexible” each side is in their approach to resolving the dispute. Litigation is a crucial tool for files that are unlikely to be resolved outside of Court because the parties are unable to reach an agreement. Litigation can also be helpful with keeping some files “on track”, as there are court dates and deadlines each party must abide by, with the file eventually proceeding to trial. In my experience, it takes a family law file at least one to two years to reach the “trial” stage, sometimes longer depending on the jurisdiction and how complex the issues are. It is not uncommon for litigation to take three or four years before reaching a final conclusion.
Mediation / Arbitration
Mediation involves hiring a third party to assist the parties in reaching a resolution. Mediation can be highly effective, provided both spouses are motivated to reach a settlement and they choose a skilled mediator. Spouses can attend mediation with or without lawyers, and mediation can occur at any point in the process, even if parties are involved in litigation and close to or at a “trial” stage. I have found that the “sweet spot” for mediation (when it is most effective) is typically after most or all the financial disclosure has been exchanged by the parties, and before the parties have become “entrenched” in settlement positions. Files can often be resolved without mediation, when both parties are motivated to reach a resolution and acting in their approach to negotiations, but for many files a mediation is an extremely helpful tool to bring both parties together to find a solution that works.
If mediation is successful, parties will walk away with agreed-upon terms which then need to be incorporated into a Separation Agreement. It is important that both parties obtain independent legal advice, ideally prior to mediation, to ensure proper financial disclosure has occurred and both parties understand their rights and obligations, and at the very least prior to signing a Separation Agreement. This helps to ensure both parties understand how the law applies to their situation, what they are agreeing to, and leaves the parties with an Agreement that is “durable” (unlikely to be challenged by a party or set aside by a Court).
If parties are still unable to reach an agreement on terms despite participating in mediation, the parties may consider having the issue determined through “arbitration”. Arbitration is similar to litigation in that each party presents his or her evidence and asks a third party to make the final decision, but the parties have the benefit of choosing the arbitrator they will use, the date of the arbitration, and determining the procedures they will follow. With litigation, there is little choice and flexibility in the process as procedure is dictated by the Court.
Collaborative Family Law
Collaborative Family Law is a “team-based” approach to negotiating a Separation Agreement, with both parties making a commitment to resolve their issues without litigation or threats of litigation. It is an effective form of dispute resolution, so long as both parties are committed to respectful discussion of goals and concerns, and full sharing of all pertinent information. The process involves utilizing neutral “professionals” to conduct some of the work lawyers would otherwise take responsibility for, such as gathering financial disclosure (“financial professional”) and navigating interpersonal issues / conflict (“family professional”). Solutions are reached at “Team Meetings”, rather than lawyers engaging in negotiation through the exchange of numerous letters / emails, etc. The use of neutrals and team meetings makes the process more streamlined, and the process design also helps to minimize conflict.
In my experience, Collaborative Family Law tends to feel similar to mediation, as the professionals are all focused on assisting the parties in reaching a fair resolution. The overall cost to the parties will depend on how complicated the issues are and how long it takes for a resolution to be reached. In terms of the “emotional toll” a separation can take on parties, Collaborative Law is a great way to minimize some of the negativity that surrounds a separation, as it eliminates the “mudslinging” often contained in correspondence between lawyers and pleadings filed in Court. Both parties and their lawyers are focused on finding solutions, rather than proving his or her case or attacking the other’s.
Collaborative Law is one of the best ways to resolve a family law dispute, and further information about this process can be found in a subsequent article, “The Benefits of Collaborative Family Law”.
Importance of independent legal advice
Regardless of the method of dispute resolution you select, the importance of independent legal advice cannot be understated. Over the years, I have had plenty of clients who are amicable with their partner and feel they can reach an agreement without the assistance of lawyers. It is also common for parties to engage in mediation without ever obtaining independent legal advice, which can be problematic as the mediator must maintain neutrality and cannot give legal advice to either party. Some people have the impression that involving lawyers will only create or exacerbate conflict. This is an unfortunate misunderstanding, which ignores the key role that a lawyer plays in the process of dispute resolution. Before a person can decide whether a particular outcome is fair and appropriate for them, it is important that they are provided with the disclosure necessary to understand the situation, and it is important that they understand the law (their entitlements and obligations, and the range of possible outcomes they could expect from a Court).
Having a lawyer in your corner ensures you have this information at your disposal, so that you are entering into negotiations fully informed.