What is collaborative family law?
Collaborative family law is a method of resolving disputes that takes place outside of the court system, in which both parties to the dispute work together with their family lawyers in Toronto to arrive at a resolution.
The first step in resolving a family law issue collaboratively is to try to come to an agreement by negotiating through lawyers. In addition, if parties are not able to reach an agreement through negotiations alone, they can enter into the mediation/arbitration process in lieu of going to court to litigate their issue(s).
What is mediation?
In mediation, the parties and their divorce mediation lawyers meet to work out a settlement with the help of a neutral third party. The mediator may be a senior lawyer or other appropriate person recommended by the court. Each lawyer will ask for personal and financial disclosure from opposing counsel before the mediation date, so that all of the required information will be available at the mediation.
What is arbitration?
If the parties are unable to arrive at a settlement agreement through mediation, the process will shift into arbitration. An arbitrator is a neutral third party who hears evidence and arguments from both sides and makes a legally binding decision. The arbitrator acts kind of like a judge, enforcing procedural rules, legal rights and obligations, and decorum.
How does the mediation/arbitration process work?
The power of the arbitrator to make a binding decision comes from the arbitration agreement. Arbitrator can determine the legal contract specifies by the parties. A similar agreement will precede mediation, setting out the obligations of the parties, including the obligation to negotiate in good faith. Both parties and witnesses must sign these agreements. They must also state whether they are governed exclusively by Ontario law.
It is possible, however, for the court to find such a clause invalid for reasons such as:
- A finding that one of the parties signed the agreement under duress;
- A finding that there is a power imbalance between the parties;
- The failure of a party to make relevant financial disclosure;
- A finding that mediation/arbitration would not be in the best interests of a child; and
- One of the parties did not comprehend the nature and effect of the agreement.
Why is mediation/arbitration often a better option than litigation?
Whether entered into voluntarily or by virtue of an agreement, this process is a far cheaper way to resolve a dispute, both in terms of the fees paid by the parties, and the strain put on court resources.
When is mediation/arbitration, not a suitable option?
Mediation and/or arbitration may not be the best option for all family law conflicts. As mentioned, power dynamics between the parties may unfairly affect the outcome. Domestic abuse can be subtle and difficult to detect.
As of 2008, an arbitration agreement must include a provision requiring the arbitrator to be trained in family law. This screening is to determine the parties’ eligibility for arbitration and flag any safety issues. The arbitrator is not required to follow the recommendations in a domestic violence screening and power imbalance report. Generally, however, arbitrators tend to follow the recommendations of the screening report.
Financial disclosure from the opposing party in a mediation or arbitration may not be mandatory. If one party is hiding assets, the arbitrator cannot order that party to produce information.
Overall, mediation and arbitration are very helpful tools in reaching a solution. A judge will look more kindly on a party who shows a willingness to negotiate than on one who refuses. A good lawyer will help you figure out the best way to solve your problem.
How to find help:
Do you need legal advice? Get help from divorce lawyers who are trained to help you navigate through the whirlwind of paperwork and emotions that come with deciding how to proceed. Our lawyers can give you legal advice on separation agreements before you sign them.
Tailor Law Professional Corporation offers a free thirty-minute consultation during which you can speak to a lawyer about your situation. Our family lawyers in Mississauga are happy to sit down with you and discuss your legal issue. We encourage you to meet with one of us, and we’ll see how we can help. This company provides free consultations to help figure out the best way forward.