Collaborative, Mediation or Litigation?

Collaborative

While there are protocols for the steps and pace of a Collaborative file, you and your spouse can customize a wide variety of decisions along the way, so the process meets your needs. You and your spouse are guided through settlement negotiations by your lawyers and other members of your team, who are focused on your goals and priorities. Once issues are resolved, the lawyers draft a separation agreement to be reviewed, discussed and finalized.

Mediation

The mediator designs a customized process, after intake sessions with each spouse. The pace and order of addressing issues can be adapted for your needs. If an agreement in principle is reached, the mediator will draft a Memorandum of Understanding for you to review with your respective lawyers. You will each need to retain a lawyer to get advice on the proposed agreement and to prepare or finalize the final written agreement.

Litigation / Arbitration

The proceedings and pace of a court action are governed by the Family Law Rules, the availability of court dates (which can involve many months of delay) and timetables set out in judges’ orders. Judges decide any factual disputes at motions and trials and apply the related statutes and caselaw to the issues to be decided. Arbitration is a form of private court, where a jointly retained arbitrator will control the timetable and decide the legal issues to be determined.

Collaborative

A primary goal of the Collaborative process is to minimize conflict and maximize the opportunities for settlement. This is achieved by ensuring that the information that is required to make decisions is available and that you have the support you need from Collaborative professionals to make informed decisions. Prioritizing goals and interests, respectful communication and financial transparency shift the focus away from competition and fighting.

Mediation

Mediation, like Collaborative, can be an interest-based negotiation process which aims to minimize conflict. The mediator, as a neutral party, will guide you through the negotiations and assist you to reach an agreement in principle. Each of you will get legal advice from your own lawyer but unless you choose to have them present for the mediation, each of you must advocate for yourselves. The mediator is a facilitator and cannot give legal advice. The tone of the process depends on the mediator, and the approach taken by each spouse and their lawyers.

Litigation

Litigation, by its nature, is an adversarial process – whether in court or at an arbitration. Legal positions must be set out in writing at the beginning and again at each stage. Strategy and a desire to “win” are the natural by-products of entering into a court process and increase conflict. This process is necessary in some cases where one spouse refuses to negotiate in good faith or produce relevant financial disclosure.

Collaborative

Cost-effective. Even though there may be more members on the team, the additional team members may result in lower total costs. Financial and family professionals contribute their specialized expertise and do some of their work directly with you and your spouse (so the cost is shared) without the presence and additional cost of the lawyers. Work is distributed among team members to ensure the work is done by the most qualified person at the lowest price. The total costs will depend on complexity and cooperation.

Mediation

Cost-effective. You and your spouse share the cost of the mediator. The involvement of lawyers will depend on both the complexity of the issues and the capacity of you and your spouse to cooperate without additional assistance. If the lawyers are extensively involved in the meditation, the costs will increase substantially.

Litigation

Expensive. The court process requires a lot of time spent by the lawyers in preparation of the required court documents as well as preparing for each step of the process itself. However, if one spouse refuses to cooperate with a negotiation process, a court process may be required to force participation.

Collaborative

Your team can start working on your settlement as soon as they have been retained. How long a resolution takes depends on the complexity of the financial information to be assembled and you and your spouse’s ability to work together to resolve conflict areas. Your lawyers and other professional team members are focused on guiding you through the settlement process efficiently with the goal of achieving your primary objectives. Most cases are resolved within several months to a year from the start of negotiations.

Mediation

Your mediator will meet with you and your spouse to moderate your negotiations. After the mediation process is complete, you and your spouse will each meet with your own lawyers to review the issues and outcomes of the mediation process. Sometimes this can be achieved relatively quickly, within a few months when there is a lot of cooperation. When there are more complex financial issues to be resolved, the timeline may be longer in order to gather and obtain the needed information (like a business valuation).

Litigation

Litigation is a long, drawn-out process which can take years to come to completion. Most people ultimately agree to a resolution part way through the process, rather than take the issues through to an expensive trial. There are conferences along the way with a judge or dispute resolution officer to encourage settlement. The court controls when you can move to the next step in the process and there are long delays in many jurisdictions. A matter that goes all the way to trial will generally take at least two years.

Collaborative

Bother lawyers are present throughout the Collaborative Process, to provide you with legal advice, guidance and support; although there may be times when you and your spouse work primarily with a family or financial professional. During settlement meetings, you will hear both counsels’ views on the legal issues that arise and, if there are differences of opinion, these will be discussed along with potential avenues for resolution.

Mediation

Lawyers are not generally present during mediation sessions. Ideally, you and your spouse each retain your own lawyer to give you advice during the mediation process, although some people choose to only consult a lawyer after an agreement in principle has been reached. More complex cases may require that counsel be present at the mediation sessions.

Litigation

Lawyers focus on court procedure and strategy to advance a client’s legal position. They communicate directly with each other, primarily through correspondence, and act as your voice in the courtroom. You do not communicate directly with your spouse or with his or her lawyer to negotiate a settlement.

Collaborative

Experts such as business or income valuators and property appraisers are recommended whenever it is believed to be helpful or necessary to resolve issues. They are retained jointly and therefore neutral. For complex reports like a business valuation, they will often present the information at a meeting with both spouses and their counsel present to ask questions.

Mediation

Experts can be brought in when agreed to by both parties in a manner similar to the Collaborative Process if there is a high level of cooperation. If one spouse chooses to hire an expert to prepare a report, the mediator (or the other spouse’s lawyer) may recommend hiring a separate valuator to review the report (similar to litigation).

Litigation

You and your spouse normally hire your own experts on financial issues. Two experts add to both the cost and the adversarial nature of the process.