Alternative Dispute Resolution
Alternative (out-of-court) dispute resolution is generally best for all involved and is voluntary. It is usually faster, cheaper, and more family focused. The parties are in control of the final resolution and not the court. Three common out-of-court resolution options:
Collaborative Family Law
Collaborative family law involves each party retaining a specially trained family law lawyer. Everyone meets and works together as a team to reach an agreement that satisfies both parties’ interests. The process can be more expensive because there is a high level of support and direction by the specially trained lawyers.
Depending on the circumstances and if there is an agreement, the team may include financial professionals and/or family relation professionals. Collaborative family law has a very high success rate in part because of the support throughout and parties' committment to resolve the issues amicably.
Should the process fail, the lawyers cannot represent the parties further. This is an incentive to collaborate and come to a final resolution together.
In mediation, parties attend before a family law mediator (a neutral third-party) to come to an agreement. Parties can attend with or without lawyers and can even occur with or without being in the same space as the other party. This is usually a cost-effective approach, but there is no guarantee that a final resolution will be reached. Mediation can take longer if one party delays or there is no direction. It is important to have a lawyer from the beginning to provide guidance and independent legal advice throughout the mediation.
Negotiation Parties may choose to negotiate themselves or through lawyers but often it is best to leave it to the lawyers. Here's why:
First, separation is usually an emotional time, so when emotionally charged parties negotiate, it is challenging to focus on the issues and come to a resolution.
Second, parties are often aware of bigger issues like property division, cash-flow, and children but unaware of the smaller issues like splitting of government benefits/credits, whether a child's expense is special or extraordinary, and time limits for claims.
Third, parties are often unaware of their rights, obligations and responsibilities for property division, cash-flow and children.
Litigation may be required in certain circumstances such as high-conflict, domestic abuse or unreasonable expectations. Parties often find litigation overwhelming, expensive and emotionally draining. A lawyer can help navigate the court system.
Litigation compels both parties to participate. If a party does not participate, the other party may proceed and obtain a court order. There is a guaranteed end result, but litigation often takes longer and is more expensive.
The best resolution outcome is usually a balance of both parties’ needs and interests as there is often not a “right” answer. More importantly, moving on is better than being “right”.