© 2019 — Collaborative Practice Sudbury

Divorce & Separation Options

You Have a Choice

Separation and divorce is stressful and painful. The way you choose to resolve the issues can make it worse or better. You decide the road to take.

Collaborative Team Practice

The Collaborative process is a cost-effective, future-focused, efficient, creative, problem-solving process. It is not about finding blame. It’s about creating a unique resolution that meets the core concerns of both parties. A professional team of divorce lawyers will support you to find a resolution to the issues, through a series of meetings. You’ll get the information you need to make the best decisions. You will commit to not going to family court and to negotiating a fair deal that works over the long term. In most cases, this is the best way to minimize the cost and pain of divorce. See the Collaborative Roadmap Here.

Mediation

You and your spouse work with a neutral third party to negotiate the terms of an agreement that works for your family. Normally, your lawyer does not attend the mediation process but you will have the opportunity to review the agreement with your lawyer prior to signing an agreement. It is effective, but some clients prefer the Collaborative process where your lawyer is present throughout the negotiations.

Lawyer Negotiations

It is always better to negotiate a settlement than to litigate it. Lawyer negotiations often result in an agreement. Some negotiations are conducted by correspondence but we sometimes have four way meetings to discuss the issues face-to-face. The advantage of the Collaborative process over lawyer negotiations is that in Collaborative there is a commitment that the case will not go to court. With Lawyer Negotiations, it is possible for the case to end up in court if resolution is not achieved. Family court is slow, costly, difficult to predict and you are giving the power to decide the issues to the judge.

Arbitration

Arbitration is similar to the court process except that the parties and their lawyers choose the judge and determine the procedural steps. As a result, closure is achieved. The downfall is that parties give the arbitrator (a privately retained professional who is given the powers of a judge) the right to decide the case only on the basis of the law. As a result, creative solutions that meet the core concerns cannot be considered. The arbitrator applies the law as he or she sees fit. It’s better than going to family court but it is expensive, and you give the power to decide the case to the arbitrator.

Family Court

Family court is a last resort. It is expensive, slow and the results are difficult to predict. The adversarial nature of the process often escalates the animosity between the parties. The judge will make decisions about your family based on the law without regard to your core concerns. The judge cannot be creative. Although we regularly represent clients in family court, we do so only if there is no other avenue of resolution available.

Here is a chart that compares the various process choices.

Collaborative Practice or Mediation in Sudbury?

In Sudbury, Ontario, couples that are separating or divorcing have the option of choosing one of two different paths to settlement without going to court. Some members of Collaborative Practice Sudbury are also mediators. Our group recognizes that both mediation and collaborative law have benefits as alternative dispute resolution paths. How do you know which path is right for you and your spouse?

Family law mediation in Sudbury takes different forms but the most common form is:

  • the couple attends with the mediator without lawyers;
  • the mediator is neutral and cannot decide an issue or provide legal advice;
  • the mediator assists the couple in understanding each other’s concerns and developing options to reach a settlement;
  • the mediator prepares a non-binding report for the couple to take to lawyers to prepare a Separation Agreement.

Collaborative resolution in Sudbury uses the team model:

  • each spouse has a lawyer to help with legal issues;
  • the couple shares the neutral Family Professional and Financial Professional;
  • the Family Professional helps the couple work through the emotional issues including a parenting plan;
  • the Financial Professional helps the couple resolve the financial issues;
  • the team works together to address concerns and develop options to reach a settlement;
  • the lawyers draft a Separation Agreement.

Both mediation and collaborative resolution are:

  • less expensive than court;
  • faster than court;
  • less confrontational than court;
  • open to creative solutions you cannot get from a court;

So why choose collaborative resolution?

First, not all mediators follow the most common form set out above.  If the mediator you and your spouse are thinking of hiring tells you not to consult a lawyer that should be a warning sign.  Before you start any process you should know your rights and obligations. During the process, you should be allowed to consult a lawyer of your choosing whenever you want.  At the end of the process, you should be allowed to review a Separation Agreement with a lawyer of your choosing.  Do not waive your right to independent legal advice because you might not be able to change that Separation Agreement in the future if you regret your decision.

Second, sometimes there are power imbalances in a relationship where one spouse feels at a disadvantage.  That spouse might not have good financial knowledge.  That spouse might not want to discuss difficult issues with the other spouse.  The neutrals in collaborative practice can help this spouse overcome that power imbalance.

Third, sometimes one spouse is choosing mediation to take advantage of the other spouse.  Often that spouse will threaten to stop the mediation and go to court unless he or she gets what they want in the mediation.  In the collaborative process, the lawyers and neutrals ensure no one is going to be taken advantage of and no one threatens to go to court.

Fourth, sometimes you need somebody by your side during difficult conversations.  Both you and your spouse will be prepared by the Family Professional so you are emotionally ready for that conversation.  The Financial Professional will have you prepared so that you understand the numbers before you make a financial decision.  Your lawyer will have you prepared so that you understand the legal consequences of each option and your decision.

Fifth, sometimes your separation is more complex than you realize.  A spouse may be having emotional problems.  The couple may have debt problems.  The couple may have business interests or self-employment that requires financial expertise.  A spouse or a child may have health issues.

These are some examples of situations that may require the team approach of collaborative practice rather than mediation.