Janet L. Clark, Family Lawyer
Helping You and Your Children
You and your partner can agree on some things, but on some other matters, you might need a little help.
You need to know that the person helping the two of you is going to do that without playing favourites, and that your agreement is something both of you can live with that doesn't promote more conflict. The two of you have better things to do with your lives than spend them in lawyers' offices.
A mediation is one or more meetings between you and the mediator resulting in either a binding memorandum of agreement you can take to your lawyers to write up or a binding separation agreement that you can have the mediator write up for you, once you've agreed on everything.
Mediations can work even if the two of you can't or don't want to meet face to face. The mediator can work around that if it can't be done another way.
While a mediator can be a lawyer and do legal work, the mediator is not acting as a lawyer when she mediates, so you will have to get a lawyer's advice if you have legal questions about your case.
Litigation is the traditional road to court. It is possible to negotiate during litigation, depending on your case, but court can also result in lengthy delays and the very high financial cost of interim orders and even trial at any level of court.
It is also more likely that if the two of you go through litigation, the emotional cost will be borne not only by the two of you, but by your children, who will be learning that fighting in court with your spouse is a normal part of life. It isn't, nor should it be, particularly since the stress of your litigation can have physical effects on the health of your children, causing them to suffer in school and in their relationships with others.
While the threat of court can make people want to settle, the end result at a trial, after spending your child's university tuition on it, might be something very different than what you wanted in the first place and might even be worse than the compromise your spouse asked you for beforehand.
You should consider this, in light of the risks, to be your last resort.
A collaborative lawyer isn't like other lawyers, and collaborative family law is not litigation. Lawyers aren't collaborative lawyers just because they say so. They have to be properly trained to do it. If your lawyer says he or she is collaborative, make sure you ask what training they have for it.
If you want to resolve your issues collaboratively, each of you gets a lawyer and each of you AND both lawyers sign a special agreement that you will all work together to resolve your outstanding issues without going to court. Your lawyer represents your interests, but if that lawyer has a bright idea that would help both of you, she isn't prevented from suggesting it.
Collaborative lawyers sometimes suggest that the two of you involve non-legal professionals such as financial neutrals, divorce coaches or child professionals in the process because they have special expertise in their own areas and tend to cost less than the lawyers. This can lower the cost of the process for you overall. This also means that the lawyers can concentrate on lawyering, which is better for you financially.
So, you know for sure that there are some things that you and your spouse will never agree on. These things happen. Do you need to go to court?
The short answer is no. You can arbitrate instead.
Arbitration is like going to court without going to court. It can still be very formal, but it doesn't have to be if you, your spouse and the arbitrator agree in writing to use a less formal approach. If you do, not only can it take much less time, depending on what you need, it can be done sooner and less expensively than a court trial.
In arbitration, you can hire lawyers to represent you or you can represent yourselves. Just like court, you can appeal the arbitrator's decision in certain circumstances, and just like in court, at the end, you will have a binding and enforceable decision written by the arbitrator.
You can also combine the mediation and arbitration processes to cover those situations where you can agree to some things but not everything. For example, if you like, you can start your process as a mediation and if not everything can be agreed to, you can just arbitrate those issues that are the sticking point.
To Court or Not to Court? Pick Your Process