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6 Family Law Processes illustration

Introduction

There are a number of methods in a family law matter that the spouses may use to come to a resolution of the terms of their separation. The purpose of this article is to explain briefly the different methods by outlining how they work and what are the advantages and disadvantages of each method.

There are six distinct processes, however, they are often used in combination with each other although one method usually predominates when they are used in combination. The six basic methods are as follows.

Client to Client Negotiating

Often on marriage breakdown, clients will discuss with each other what they believe are fair terms of how they should deal with the children, divide up the assets and pay support. They may or may not obtain advice from lawyers as to whether or not their agreement is fair. They may or may not put their agreement into writing in the form of a separation agreement.

The advantage of this method is the low cost since they are not paying for lawyers. Usually this method is faster than the other methods, and the clients have control of the process. But the major disadvantage is that the clients are not lawyers and do not know what their rights and obligations are. Therefore, they may not come to a fair settlement. If one party is more aggressive than the other, the agreement might not be fair. If there is no agreement and there is spousal support they will not be able to take advantage of the tax breaks that spousal support may provide.

The clients might start off with this method and then retain a lawyer for advice to confirm their agreement is fair and to have that agreement put into writing. The major problem with starting with this method is that the clients may agree to something that they think in their own minds is fair but then they discover when talking to a lawyer that they have given up rights. These rights may be more difficult to get back in the ensuing negotiations. In this process there is often not complete financial disclosure of assets and income may be hidden. It is not recommended as the primary method but spouses will generally talk with each other about what they expect with the separation.

Mediation

Mediation is a method whereby the two clients negotiate the terms of their settlement of their marriage breakdown with the help of a third party mediator. The mediator is in effect, a referee between the parties. A mediator cannot give legal advice. Each party in mediation will still obtain their own lawyers to obtain legal advice but the lawyers will not be involved in the negotiations. The clients will negotiate, with the help of a mediator. The mediator is generally trained and is often a lawyer for the financial issues and a mental health professional for the custody issues.

An advantage of mediation is that it will most often be less costly than going to Court. The clients must be aware that it is generally more costly than getting a settlement through lawyer negotiations and can be quite expensive itself if the mediation is lengthy.

Mediation can be done relatively quickly although not as quickly as lawyer/lawyer negotiations. The mediator’s and clients’ schedules must be taken into account and the clients still need to see a lawyer for their basic rights and obligations.

There is a high degree of participation by the clients. If the clients are educated by the mediator, often with respect to parenting issues, the process can be somewhat therapeutic. A spouse has the opportunity to express their feelings in a controlled setting in front of a mediator. The mediated settlement is bound to work better in the long run than Court imposed resolutions as the parties have a interest and say in the decision rather than having it imposed upon them.

The disadvantage of mediation is that it can be costly if the parties have difficulty coming to a resolution/agreement. The communication aspect in mediation can be a little cumbersome as each party has to go back to their lawyer for opinions. Sometimes mediation is a waste of time as one client had no intention of compromising and only used mediation in the hope that the process would result in settling on the terms that that person wanted.

A good mediator will ensure that the parties are on an equal bargaining level but sometimes the more aggressive spouse will be able to get a better deal for themselves by pushing their position more strongly. This method is very appropriate for parenting issues but not always for contested financial issues.

Collaborative Law Method

Collaborative law is a new process formulated by practising lawyers to take the best of mediation, lawyer/lawyer negotiation and client/client negotiation. In terms of time and costs, this process has major advantages over the Court action process.

The basic concepts of collaborative law are as follows:

(a) The parties and their lawyers use four way meetings to discuss a resolution.
(b) The parties and their lawyers commit themselves at the beginning of the process that they will resolve the terms of the separation co-operatively without the need to go to Court. This is done by the clients and the lawyers signing an agreement stating that if it is not resolved by the lawyers and their clients, then the clients must retain another lawyer to take the matter to Court.
(c) The lawyers are trained in the collaborative law process and are associated with a network of collaborative law lawyers.

The advantages of collaborative law are many. There is a high rate of participation by the client. It is the best form of communication of all the systems because all of the parties are in the same room at one time. Misunderstandings and positions can be explained and understood. As lawyers are present, there is less chance of a spouse being aggressive and a greater chance of preparing a settlement.

  • Costs are lower than taking the matter to Court, however, more costly than the lawyer/lawyer and client/client method, and most likely the same costs of mediation. There is less stress on the parties in knowing that if there is a breakdown of negotiations, one is not immediately going to be in Court because the parties have to seek new lawyers to start the Court action.
  • There is more of a commitment to resolve the matter than in mediation and lawyer/lawyer because there is bound to be more expense and time if the process fails.
  • Some may also say that there is far more of an interest on the part of the lawyers to settle the matter because they will lose the file if there is no settlement.
  • Not all lawyers are collaborative law lawyers so this method cannot always be used as both lawyers must be collaborative law lawyers.

Lawyer to Lawyer Negotiating

This is the most common method to process a matrimonial dispute and often the one that is the starting point. Each client retains a lawyer. The parties exchange, through their lawyers, financial information and their positions to resolve their matrimonial dispute and to exchange their positions as to what should be in the settlement through a separation agreement. The lawyers will then negotiate based upon the instructions of their client as to what the terms will be. The separation agreement is drafted by one of the lawyers and approved by the other lawyer, after consulting with their client. This is usually the least costly method next to the client/client process. It is generally the fastest method.

The level of client participation is not as high as mediation and/or collaborative law, but still has client control of whether to accept the agreement or not. It is not as therapeutic as mediation or collaborative law because there is not face to face discussions with the spouse and for the same reason, communications may get crossed up because of the fact that information goes from the party to the lawyer, to the other lawyer and back to the other party.

This method should be used to start the process and then depending on the case, mediation, collaborative law or court action might be used.

Five Way Meeting

A very popular way of resolving matters once the Lawyer/Lawyer negotiations or discussions break down, is to retain a Family Law Lawyer who specializes in trying to resolve the matter by meeting with both lawyers and both clients. This Family Law Mediator will generally conduct a half day or a whole day meeting similar to a Settlement Conference whereby the Lawyer Mediator will try to mediate the issues in dispute, and in doing so will provide an independent legal opinion as to what would happen if the matter went to court. This Lawyer Mediator often will then be requested by the parties to actually draft the Separation Agreement. It is advantageous that the parties hear from an independent person on how to resolve the matters, and get an independent person to draft an agreement which would result in less arguing over the wording of the agreement.

Court Action

This is the most common method to process a matrimonial dispute and often the one that is the starting point. Each client retains a lawyer. The parties exchange, through their lawyers, financial information and their positions to resolve their matrimonial dispute and to exchange their positions as to what should be in the settlement through a separation agreement. The lawyers will then negotiate based upon the instructions of their client as to what the terms will be. The separation agreement is drafted by one of the lawyers and approved by the other lawyer, after consulting with their client. This is usually the least costly method next to the client/client process. It is generally the fastest method.

If, after lawyer/lawyer negotiations, mediation, five way meetings, collaborative law or client/client negotiations, the parties still cannot agree on the terms of their separation, then a Judge will have to decide those terms.

There are not many advantages to this system other than it is the method necessary when the parties cannot agree through the help of a mediator or a lawyer. It is very costly and can wipe out a large portion of a person’s assets. It can be lengthy. It is stressful for the client. Often the losing party is not happy and will do their best to work against the decisions. However, this method is often necessary because the parties are too far apart on what they believe is a fair settlement. Often, however, Court action is started just to prompt the other party to deal with the negotiations and after starting the action, or after one or two steps in the action, the matter settles. Only a small percentage of Court actions proceed to trial.

Conclusion

Which process to use depends on the issues and the parties. If custody and access are in dispute, then a mental health mediator will probably be the best to use in that instance. For the methods of client/client negotiations, mediation and collaborative law, both the parties must be in agreement otherwise the process will automatically default to start with lawyer/lawyer negotiating (or lawyer/opposite client negotiating if the client refuses to get a lawyer). If the parties simply cannot agree after lawyer/lawyer negotiations, the Court action method will be employed.

For more detailed explanation of the many processes of family law, please read my more detailed articles and government pamphlets. Visit the web sites of mediators and our local collaborative law network at Ontario Collaborative Law Federation to receive further information.