In the wake of a separation, what my clients need most is stress relief. Unfortunately, the justice system often feels as though it’s designed to amplify stress, thanks to the cost and delay that has become an unavoidable part of traditional family law litigation, not to mention the inherently adversarial nature of the process.
A recent report by The Advocates’ Society highlighting the crisis in the civil justice system across the country urged governments at the federal and provincial levels to commit resources urgently to the problem.
In Ontario, the society found that it can take well over a year just to set a motion date for longer matters, while family law litigants can expect to wait between four and five years for a trial date in some of the province’s busiest regions for the courts.
In the meantime, there is some good news. Alternatives to court exist, and below, I explore mediation and collaborative family law, two options that I find work best for splitting spouses willing to embrace the challenge of settling their family law matters themselves in a more efficient and cooperative way.
Mediation
As long as everyone is on board and committed to this voluntary process, mediation can be a great option for separating spouses.
Parties can use mediation to settle disputes over any family law matter, including spousal support, child support and property division. However, in my practice, I have found that the process is particularly helpful for former spouses seeking to set a shared parenting plan and other parties wanting to have an ongoing relationship.
At the heart of the process is the mediator, a neutral third party whose aim is to help both sides feel heard, understand their goals and guide them towards a settlement that each can live with.
The entire mediation is conducted “without prejudice,” which means that neither side is allowed to use something that was said or an offer that was made against the other party if they ever end up in future court proceedings.
At its best, the openness fostered by this approach can help a mediator lead the parties to creative solutions that work for everyone, rather than sticking strictly to the letter of the law on family law issues.
The flexibility of mediation gives former couples the freedom to control the mechanics of the process, including the timing, location and manner of the sessions, as well as the choice of mediator. Former spouses don’t have to hire a lawyer to represent them at mediation, but it’s still a good idea to get legal advice in advance so that everyone is properly prepared and aware of their rights.
Although the fees of the neutral party are an additional expense parties don’t have to worry about in litigation, mediation still tends to come with a lower overall price tag. This particular cost is shared and immediately pays off if you can reach a timely settlement.
Collaborative family law
Collaborative family law is another sound option, providing you and your former spouse with a support team to navigate the divorce process together.
Here’s how it works: Each of you will hire a lawyer trained specifically in collaborative family law. Then, everyone works together to find a settlement that works for both parties — often with the assistance of additional experts, such as accountants, counsellors or parenting professionals.
As with mediation, one of the great attractions of collaborative law is the room it gives the parties and their counsel to craft their own creative solutions without being bound strictly to the caselaw a judge would have to follow regarding issues like spousal support, parenting and property division.
The process also tends to encourage longer-lasting, more durable agreements that will keep the parties out of court well into the future. When everyone feels like they have had a real say in the final settlement, it gives them a greater sense of investment in the outcome compared with one imposed upon them by a judge or other decision-maker.
Collaborative family law can get expensive, depending on the complexity of your personal and financial affairs and the number of professionals you need to involve as part of your collaborative family law team. Still, the potential for savings is significant, thanks to the efficiency that comes when each member of the team is working to their strengths in their own areas of expertise.
Navigating through the emotional and legal complexities of a divorce can be daunting, but you don’t have to face it alone. Exploring options like mediation and collaborative family law can provide a pathway to resolving disputes amicably and efficiently, setting the foundation for a positive future.
I’m here to guide you through these alternatives, ensuring your voice is heard, and your interests are protected. Reach out to schedule a consultation, and let’s take the first step towards crafting a solution that works for your family.