Alternatives to Court
Markham Family Law Lawyer
A Separation Agreement is a written agreement between two parties that outlines the resolution reached on various, or all, issues from the breakdown of a relationship. This is prepared before a divorce application is made to the Court.
A Separation Agreement is meant to be binding on both parties and details all of the terms that both parties have agreed to including issues of custody/parenting, child support, spousal support, property division, insurance policies, pensions, and other related matters. A Separation Agreement allows the parties the freedom and flexibility to create settlement terms that are tailored to the needs of their family.
Kitchen Table Agreements
While it may be tempting to go online and print off a do-it-yourself, or a "kitchen table" Separation Agreement, this can be problematic on a number of fronts.
- First, without proper financial disclosure and independent legal advice, the Separation Agreement can include clauses that are not fair or in line with your rights under the law.
- Without these two things, the agreement can e challenged by the other party and "set aside" (aka: treated as void) by the Courts at a later date.
- The Agreement can also be challenged if any of the basis contract principles have been violated. For example, in family law, duress is often a concern, because both parties need to have entered into the agreement voluntarily for the Agreement to be considered binding by a Court.
- In addition, if the Separation Agreement is not reviewed by a lawyer, it may contain clauses which are unenforceable and the terms agreed to may not reflect the laws that are in place. The Agreement may also not fair or equitable to both parties, and this is a bigger problem where parties have children and an ongoing relationship as co-parents.
Negotiation involves discussions between two parties, or their counsel to assist the parties, in reaching an amicable resolution to the issues arising from the breakdown of their relationship. While parties are certainly encouraged to negotiate between themselves, often times communication between spouses can become strained due to the significant stress that comes with the end of a relationship.
Having a lawyer assist with the negotiations helps to reduce any potential conflict, and to keep the focus on resolving the issues. This will also ensure that your legal rights and interests are being met, and that the terms being negotiated are reasonable and equitable to both parties. Lawyers are able to speak with one another to convey their client's interests and wishes, and work together with their clients to reach a solution that is fair and sustainable. Once the negotiation process is complete and terms are agreed upon, a Separation Agreement would generally be drafted and the agreed-upon terms would be incorporated into the Separation Agreement.
If the issues are resolved through negotiation during a court process, the agreement may be formalized by way of a Minutes of Settlement, which is a binding agreement (as is a Separation Agreement) that summarizes the terms between the parties. Separation Agreements generally have more content than a typical Minutes of Settlement.
The Collaborative Law ("CL") process is a relatively newer dispute resolution model that has fortunately evolved in the family law arena. It was created by a group of lawyers that felt there was a better way to resolve family law disputes and that felt frustrated with the inadequacies and pitfalls of trying to resolve family law issues through Court.
In the CL process:
- Both parties retain lawyers who have been trained in Collaborative Law;
- Both parties agree to follow the Collaborative Law process and commit to resolving their matter outside of court;
- It often involves bringing on third-party neutral experts, where applicable. The two types of these professionals are: Financial Neutrals (where a business or income needs to be valued, or money issues are complex) and Family Neutrals (to assist the parties with resolving the emotional issues resulting from the end of the relationship).
- The third-party neutrals invaluably bridge gaps between the parties. They bring skills to the table that lawyers are not trained in, and it helps the parties work through complex financial and emotional issues, while they deal with legal issues, so that they can more easily reach an agreement that is fair. The terms are then documented into a formal written agreement by the lawyers.
- There is an emphasis on mutual respect, focusing on the needs of the children and the family, addressing the interests and concerns of all parties, promoting problem-solving, and helping to repair and foster ongoing and positive communication between the spouses.
- Although each party has a designated lawyer, both lawyers essentially work together as a team for the best interests of the family as a whole, instead of working solely for their client without regard for the other party.
- Rather than writing letters and emails back and for, meetings with the parties, their lawyers and often the neutrals take place as needed to address the issues. Some cases have a complete resolution after the first collaborative meeting, whereas other cases, either due to complex issues or the diverging views and opinions of the spouses, may require a few more meetings before a complete resolution is reached on all issues.
Where parties are unable to reach a resolution themselves or with the assistance of counsel, an often-used alternative is mediation. In mediation, the parties jointly select and retain a neutral third party, generally an experienced family law lawyer, to facilitate communicate between the parties and their lawyers.
The mediator will help to focus the issues that are in dispute and generate various options for settlement for consideration. The mediator helps parties assess the strengths and weaknesses of their case, the reasonableness of their position on an issue, and help brainstorm creative solutions that the parties may not have considered. The parties maintain control of the process, and a resolution is reached only when both parties are in agreement on the terms.
Arbitration is a unique process that allows the parties to obtain a binding decision without having to go to court. In many ways, it is essentially a private court that the parties pay for. They jointly select and pay for their arbitrator who acts as the judge in almost every respect. The awards made by the arbitrator are binding just like court orders.
The arbitrators are usually experienced family law lawyers and have had specific training and certifications to become an arbitrator. The arbitrator creates a streamlined process that looks much like a trial in litigation in most ways. Once the arbitrator heard from both parties' lawyers, they render an Arbitral Award, similar to how a judge would make an Order in court.
In most cases, arbitration is a secondary step to mediation (a hybrid process known as Med-Arb). In Med-Arb the parties jointly retain a neutral third party to act as a mediator, and if the parties are unable to resolve their issues with the assistance of the mediator, then an arbitration would be booked, and the mediator would become the arbitrator. This hybrid process allows the parties the opportunity to reach a negotiated resolution, forcing both parties to put their best feet forward (because the mediator will soon be the arbitrator if there is no agreement), and it also provides the back-up assurance that if an agreement cannot be reached, that one will be imposed by the arbitrator.
Speak to our Family Law Lawyer, Radhika Lakhani today!
Call (416) 725-4400