COURT is a legal process option to resolve your conflict. Court is a very formal and lengthy process. Because of this, it is 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. Other legal resolution processes should often be explored first.
NEGOTIATION should often be tried before a court action is started. If it is hard for spouses to negotiate with each other without help because of high conflict or communication problems between them, their lawyers can advise them about the law and help them to negotiation a settlement. This can take place in one of the lawyer’s offices, or by videoconferencing, involving both spouses and their lawyers. 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 process where both parties agree on a qualified mediator to help them reach a final settlement on all their issues. The mediator will help 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. 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 PROCESS is where each party is represented by a lawyer who is properly trained in the collaborative process to help spouses resolve their issues. The lawyers assist the spouses to negotiate the terms of a Separation Agreement. The spouses sign a contract stating they will not proceed to court, but will negotiate all the issues to settlement. The negotiation is interest based, meaning the interests of both spouses are considered. The spouses 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. The collaborative process consists of a series of settlement meetings to work through the interests of the spouses. Once the spouses have reached an agreement on all issues, a Separation Agreement will be drafted and signed by them.
ARBITRATION is a private trial. The spouses jointly hire a qualified 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 is where the spouses hire a qualified Mediator-Arbitrator. They start off with the mediator attempting to assist them to reach 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".