Which Path Is Right For You?
Lawyer or Mediator:
Choosing which path to take after you decide to separate is one of the most important decisions you will make. Your first step should be to talk to someone who can explain the different options and help you decide what would work best for you. As a full-service family law and mediation firm, we can help you whichever way you choose to proceed. There is no one size fits all approach when it comes to separation and divorce, so learning about your options and your rights is the best way to start.
The pathways available to you when you are separating will lead you either to a Separation Agreement or a Court Order. The are several routes to a Separation Agreement – negotiation, mediation or collaborative family law. There is only one route to a Court Order and that is through litigation, where either you or your spouse starts the process by way of an Application to the court.
If both you and your partner are prepared to work towards a settlement, mediation or collaborative family law may be the right route for you. Deciding on which way to go often depends on the issues involved, your goals, and the dynamics of your relationship.
Whenever possible, avoiding the court process is recommended, but there are times when our clients need to get a court Order quickly in order to protect themselves, their children or their property. Choosing a lawyer who is a skilled and experienced litigator and will fight for you is critical. You may need to consider litigation if your spouse refuses to communicate or negotiate, or takes a position that is so unreasonable or unfair that an out-of-court resolution would not be possible.
Mediation or Collaborative Family Law:
After you have decided that you are ready and willing to negotiate terms of a Separation Agreement with your spouse, you are ready to choose which path will work best for you. We will explain your different options in detail at our first meeting with you, but here is some information to think about before then:
- Family Mediation is a process where you and your spouse negotiate issues directly with each other with the help of a family Mediator who will provide you with information, but not personalized legal advice, about your settlement options.
- In a Collaborative Family Law process you and your spouse will meet together with your lawyers to negotiate issues with your lawyers present to provide you with legal advice and support in decision-making.
- Family Mediation is a two-step process where the family Mediator will assist you and your spouse to reach agreement on the issues arising from your separation. The terms you and your spouse agree to are set out by the mediator in a document called a Memo of Understanding. This document will then be reviewed by your lawyers who will then provide each of you and your spouse with independent legal advice letting you know their opinion of the terms of agreement reached at mediation. If all goes well, the Memo of Understanding will form the basis of your Separation Agreement. It is important to choose family lawyers to provide you with independent legal advice who support the Mediation process, or things could go off the rails at this point in the process.
- In Collaborative Family Law, the lawyers are part of the negotiation process from the start, so there is no concern about the mediation process breaking down when it reaches the lawyers.
- The family Mediation process usually involves only the Mediator, you, and your spouse at the Mediation meetings. Lawyers to assist you and your spouse may be retained at the beginning to work behind the scenes, or they may not enter the picture at all until the final stage of the process when the completed Memorandum of Understanding is ready to be reviewed by your lawyers. The Collaborative Family Law process can include not only you, your spouse, your lawyer and your spouse’s lawyer, but also a family professional (usually a social worker), and/or a financial planning professional who may be an accountant, a divorce financial analyst or a business valuator.
- Family Mediation will often cost less than Collaborative Family Law as there are fewer paid participants in the process. Family Mediation can often be a very efficient process as meeting times are easier to arrange when there are fewer participants.
- When you and your spouse are confident you can work together to make reasonable and fair decisions, and you are both comfortable with making financial decisions about property division and support, then Mediation may be the right choice for you.
- It is important to keep in mind that family Mediation might be the wrong choice in certain circumstances. When one spouse wishes to avoid sharing all relevant financial information or wants to delay a settlement then Mediation may not be the right process. In addition, should a spouse want to use the Mediation process to dominate or manipulate the other, family Mediation may not be the best choice.
Make an appointment to meet with one of our family lawyer/mediators to learn more about the different paths forward that are available to you. We will help guide you through a exploration of each of your options to help you make the best choice for you.
