PROCESS OPTIONS

What is a Legal Resolution? 

A consent agreement between spouses, or a judge’s decision.

If you are separating from your spouse, a legal resolution of your entitlements and obligations can be obtained in one of two ways, either by negotiating a private contract with your spouse, or by a Judge making a decision about your situation. A contract negotiated between you and your spouse is called a Separation Agreement. It contains agreed upon terms dealing with your children, support, and property. Once signed and witnessed, the Separation Agreement is a legally binding, enforceable contract. The Separation Agreement will only contain agreed upon terms. Judge’s decisions are for spouses who cannot agree with each other, and are only obtained after a lengthy court procedure. These decisions are called orders and they are legally binding and enforceable.

How do you get to a legal resolution?

Although there are only two ways to obtain a legal resolution, there are a variety of legal process options available to obtain your legal resolution. These are outlined below.

 

Court

is a legal process option to resolve your conflict. Court is a very formal and lengthy process. Because of this, it is often the most expensive option. Once a court application is started, it cannot be easily stopped. A court process often has the effect of fueling conflict rather than diffusing it. Often, court is not necessary. Usually, other legal resolution processes should be explored first.  

 

Negotiation

should often be tried before a court action is started. This means that if the parties are unable to negotiate with each other to reach a Separation Agreement because of high conflict or communication problems between them, their lawyers can assist them to negotiation a settlement. This often takes place in one of the lawyer’s offices where both parties and lawyers meet to discuss settlement. Usually the most effective method of negotiation is termed “interest based negotiation” as opposed to “positional based negotiation”. Interest based negotiation means that the negotiators are thinking about what best serves the interests of both parties, and not just one. This is particularly important in family situations where parents need to have an ongoing relationship so they can continue to parent children. A positional based negotiation means that the negotiators are only thinking about their own needs. This type of negotiation often alienates parents from each other causing added problems.

 

Mediation

is a legal process option to reach a Separation Agreement and should often be tried before a court application is made. Both parties have to agree to use the process of mediation. Both parties jointly hire a qualified mediator, who is trained to help them to reach a final settlement on all the issues. The parties meet with the mediator, who helps steer and guide them toward a settlement. This may take a number of meetings depending upon how far apart the parties are to agreement on all matters. The mediator will not make the parties agree with each other. It is up to the parties to agree with each other and the mediator will help. Once an agreement is reached, the mediator can draft an outline of the agreement for the parties to take to each of their lawyers to review. The parties must each have their own lawyer review the outline of the agreement. This advice from a lawyer is called “independent legal advice”. The contents of the outline prepared by the mediator can then be formalized into a legal Separation Agreement by the lawyers. Often the parties will each have a lawyer before starting mediation so that they can each obtain legal advice throughout the mediation process. 

 

Collaborative

Law

is another legal process option to reach a Separation Agreement. Like mediation, both parties have to agree to use the collaborative process. In this process, each party is represented by a lawyer, properly trained in the collaborative process. The lawyers assist the parties to negotiate the terms of a Separation Agreement. The parties sign a contract stating they will not proceed to court, but will negotiate all the issues to settlement. The negotiation is interest based, as described above. The parties and the lawyers form a “team” to problem solve. The “team” can also involve other professionals such as therapists, counselors, social workers and financial experts, if needed. The collaborative process consists of a series of settlement meetings to work through the interests of the parties. Once the parties have reached an agreement on all issues, a Separation Agreement will be drafted and signed by the parties. 

 

Arbitration

is more like a court than the other process options. It is essentially a “private court”. Both parties have to agree to use Arbitration. The parties jointly hire an Arbitrator to hear evidence and decide their issues. The advantage of using Arbitration over court is the parties can have a quicker result in a slightly less formal setting. The decision of the arbitrator becomes a legally binding and enforceable document called an "Award".

 

Mediation/ Arbitration

starts off with the mediator attempting to assist both parties to reach an agreement. If they cannot, the mediator becomes the arbitrator to decide the issues for them. The decision of the arbitrator becomes a legally binding and enforceable document called an "Award".