The road between separation and resolution is unique to every couple. Just as your relationship was different than anyone else’s, your separation will be different too. Here are some ways in which people resolve the issues that arise upon separation.
1. Kitchen Table Agreement
This is where a couple will sit down together and craft their own separation agreement, sometimes with help from templates found on the Internet or from a “fill-in-the-blank” book. There is virtually no cost to these kinds of agreements but caution should be exercised when considering signing one. Kitchen table agreements are often prone to being set aside in the future and you may be signing away, or agreeing to pay, far more than you should. It is advisable to review the provisions of your Agreement with one of our lawyers prior to signing. It is less expensive to get independent legal advice upfront than to fix a problem that arises down the road.
In mediation, parties will sit down with a trained mediator who has expertise dealing with family law issues. Sometimes the mediator is actually a family lawyer. Despite their knowledge base, though, the mediator will not provide either side with advice. The role of the mediator is to guide the parties in their discussions and to assist them in negotiating a resolution. Lawyers typically do not attend with you but can if there are complicated matters to be resolved such as complex property issues.
Particularly in situations dealing with property issues, many clients find it quite beneficial to retain a lawyer to assist them in preparing their sworn Financial Statement and to provide advice throughout the mediation process, even if that lawyer does not attend the actual mediation sessions. We are happy to assist in this way.
Most times the mediation is “closed” which means that any discussions you have will be confidential. If a resolution is not reached, neither of you will be able to disclose any offers made during the course of mediation. This allows the two of you to be open, honest, and creative in your discussions.
If a resolution is reached, the mediator will prepare a report setting out the terms of your agreement. It is recommended that you bring that report to one of our family lawyers for independent legal advice and to have it turned into a formal Separation Agreement.
This process begins with mediation as described above. However, if a resolution is not reached, the mediator then takes on the role of arbitrator and will have the authority to make a binding decision. The arbitrator is required to follow the law when making his/her decision which means that creativity in solving the issues will be limited.
The benefit of arbitration is that it tends to be a faster process than the traditional court process. Also, you and your spouse have control over who the arbitrator is (typically a senior lawyer with specialized training in arbitration).
4. Traditional Negotiation
In many cases, both parties will retain counsel who will assist them in negotiating an agreement. The negotiations can be done in writing or at four-way meetings where the parties and the lawyers come together to explore resolution options. This process gives you control over the outcome and allows for creative resolutions that will address your family’s unique concerns.
5. Collaborative Team Practice
In this process, both parties will retain counsel who have specialized training in Collaborative Practice. At an initial four-way meeting, the parties will sign a Participation Agreement which states that neither party will take the other to court. If court proceedings are commenced, both parties will have to retain new counsel and any work completed or offers made will be confidential and cannot be discussed at court. This gives the parties incentive to deal openly and honestly with each other and to remain committed to finding a resolution.
A team is also assembled to help the parties. A Financial Specialist is jointly retained to assist with the financial/property issues and a Family Specialist is jointly retained to help the parents determine the best parenting schedule for their children. This approach is often more cost-efficient as a significant amount of work is done by the parties with the outside specialists who typically charge far less than the lawyers. Your lawyer is available for advice throughout the process and will draft the Separation Agreement once the terms have been agreed upon.
To discuss whether Collaborative Practice is best for you, please contact Kara-Lynne Chapman for a consultation.
Trevor Owen and Kara-Lynne Chapman are both experienced litigators who are comfortable presenting family law cases before the court. However, court should be viewed as a last resort for a number of reasons:
- It is a lengthy and costly process;
- It is often unpredictable;
- It can bring the worst out of people; and
- It puts a stranger (the judge) in control of your life and that of your children.
However, court is not without its benefits:
- It puts deadlines on the parties which helps to keep you moving towards a resolution;
- A judge can and will make a decision if negotiations have broken down;
- A judge can and will make a decision if the other party ignores the matter; and
- It helps to remove power imbalances that sometimes exist between parties because the judge has the power, not the parties.
There is no right or wrong way to reach a resolution and sometimes clients will attempt a few different processes before they settle their matter. To discuss which option is best for your particular needs, please contact us to schedule a consultation.