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 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. 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?
Mediation is a process in which both parties and their lawyers meet to work out a settlement with the help of a neutral third party who is experienced in family law. 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. In this case, the neutral third party is referred to as an arbitrator, who will hear evidence and arguments from both sides and make a legally binding decision. The arbitrator acts kind of like a judge, enforcing procedural rules, legal rights and obligations, and decorum.
If mediation can resolve some but not all of the issues on the table, an agreement can be made that sets out the agreed upon settlement, and states that the remaining issues are to be decided through arbitration.
How does the mediation/arbitration process work?
The power of the arbitrator to make a binding decision comes from the arbitration agreement. This legal contract sets out the parties’ responsibilities to the process, as well as the content and scope of the questions that can be decided by the arbitrator. A similar agreement will precede mediation, setting out the obligations of the parties, including the obligation to negotiate in good faith. These agreements must be signed by both parties, and witnessed. They must also state whether they are governed exclusively by Ontario law.
When a resolution is reached, whether through mediation or arbitration, the parties will sign a binding settlement agreement laying out the details of the resolution and what they will mean for each party.
Often, a separation agreement will include a clause requiring that any future disputes regarding the terms of the agreement shall be settled by way of mediation/arbitration. This prevents further litigation in court regarding issues that have already been legally resolved, as any changes to the agreement must be decided through mediation or arbitration.
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.
Also, bringing the resolution of issues out of the courtroom can serve to de-escalate the conflict, as the lawyers involved may be able to facilitate a more cordial and productive meeting. Mediation/Arbitration is a more private method of resolving conflicts, which can lessen parties’ fear of embarrassment or other negative feelings associated with exposing personal and financial details.
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. In cases involving domestic abuse, for example, one party may influence the other through subtle visual cues or other signals that could be undetectable to the neutral third party.
As of 2008, an arbitration agreement must contain a clause that the arbitrator is trained in domestic violence and power imbalance screening as well as (for non-lawyers) family law. This screening of the parties must take place before the arbitration begins, and is designed to flag the presence of safety issues and determine the suitability of arbitration. The arbitrator must review and keep a copy of the domestic violence screening and power imbalance report, but does not legally have to accept its recommendations. Generally, however, arbitrators tend to follow the recommendations of the screening report.
Another reason that mediation/arbitration may not be the best path for some people is that financial disclosure from the opposing party can be requested but not ordered, as a court would be able to do. This means that if one party is hiding assets and not providing complete and accurate financial information, the arbitrator cannot order that party to produce the information.
Overall, mediation and arbitration are very helpful tools in reaching a solution. Before you decide to head to court, think about whether your issue can be resolved using these tools. A judge will look more kindly on a party who shows willingness to negotiate than on one who refuses. A good lawyer will look at all of the different ways to solve your problem, and let you know which way is right for you.
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 independent legal advice on separation agreements before you sign them, and explain how they will affect you.
Tailor Law Professional Corporation offers a free thirty-minute consultation during which you can speak to a lawyer about your situation. Our family law lawyers 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. We can talk through your situation, outline your options, and figure out your next steps and the best way to move forward.