Divorce - Alternative Dispute Models
Divorce Alternative Dispute Models in Ontario
Separation and divorce is very stressful for a couple ending their marriage. If children are involved, the process can be even more distressing and emotional. A long and antagonistic legal battle can leave emotional scars on all parties involved.
There are alternatives to going to court that make the divorce process less painful. These alternative dispute models are generally less expensive and quicker than divorce court battles.
An experienced family law lawyer like Diane Daly can help you choose the alternative that is best suited to your family`s needs.
Negotiation, Mediation and Arbitration
All of the issues between you and your spouse can be decided by a judge, in court. But this is emotionally taxing for the family and extremely expensive if a trial is necessary. Most divorcing couples prefer to settle out of court, by negotiating and signing a separation agreement.
Traditional Negotiation You and your spouse typically meet with your own lawyers separately. Your lawyer learns about your case. Once full financial disclosure has been exchanged, your lawyer provides you with legal advice and suggests a variety of potential settlement solutions. You then give your lawyer your settlement instructions and he or she negotiates directly with your other spouse’s lawyer. So it is the lawyers who drive the process, with their clients in the background, giving instructions.
Mediation is suitable for separating couples who wish to discuss their settlement options and negotiate themselves, but who need the help of a neutral third party mediator who acts as facilitator for the negotiations.
A trained mediator, like Diane Daly, brings the two sides together and defuses the emotional tension to help them focus on reaching mutually agreeable solutions. The mediator does not control the outcome, but guides you to make your own decisions – keeping you in control of the process. You and your spouse decide what issues need to be discussed and generate options. The mediator is a neutral, impartial facilitator, so can give you legal information (if the mediator is a trained lawyer) BUT NOT LEGAL ADVICE. The mediator will prepare a report, based on your agreements with your spouse, and you take the report to your lawyer to review and for independent legal advice.
Diane Daly has been mediating family law disputes since 1995 and is a proud member of Family Mediation Canada and the Ontario Association of Family Mediation.
Sometimes traditional negotiation, mediation or collaborative family law, is successful in settling some, but not all the issues between separating spouses. Arbitration is an alternative to going to court to settle those issues. The neutral third party Arbitrator hears all the issues presented by the parties, and then decides the issues, just as a judge would do, based on the evidence and the law. Both parties must agree to arbitration in advance and to abide by the decisions of the Arbitrator. Arbitration can beless costly and formal than a trial and is typically much faster.
Separating spouses and their collaborative team (for example, their lawyers, family specialist, financial specialist) sign a Participation Agreement and agree not to go to court and to honestly disclose all necessary information. If either party decides to go to court, then both parties must retain new lawyers. This provides a built in incentive to both the parties and their lawyers to focus on resolving issues, rather than litigating.
Separating spouses control the process (rather than their lawyers or a judge) and work together, in a series of group meetings with their lawyers or financial or family specialists, as needed, to identify the issues, generate options and come up with solutions that meet the needs of both parties and their children. Your collaboratively trained lawyers will draft a separation agreement based on your agreements.
Diane Daly is a proud member of the International Academy of Collaborative Professionals, the Ontario Collaborative Law Federation, the Peel-Halton Collaborative Practice Group, as well as the Hamilton-Halton Collaborative Practice Group.
Diane Daly was trained in collaborative family law in 2004 and is now herself a trainer of other family law lawyers.