Out-of-Court Options: Part 2

Earlier this month, I reviewed a number of options available to separating spouses who are willing – and able – to resolve their issues outside of the courtroom: a “kitchen table agreement”, mediation and negotiation. Today, in the conclusion to my two-part post on out-of-court family law processes, I discuss three more:

1. Collaborative Law

Collaborative law is a holistic approach to negotiation in which everyone – the spouses, their lawyers, and (if necessary) financial experts and/or counsellors – agrees to work together to fashion a complete settlement without going to court.  A child specialist can be included on the team to monitor how the children are experiencing their parents’ separation.  Collaborative settlement can be used even by couples going through very difficult separations.

A key disadvantage to this approach can also be seen as an advantage: If the collaborative process is unsuccessful, you and your former spouse will have to start again from scratch with new lawyers. However, this means that there is high incentive for all involved to come to the table with minds set on amicably working together to envision a way forward and provide you with all the tools you need to resolve outstanding issues.

2. Arbitration

In this (probably most underused) process, you and your former spouse hire a neutral person (often a family law lawyer with additional training) to be your arbitrator and agree that he or she will have the authority to resolve your dispute.  Like court orders, arbitration decisions are binding.  Although arbitration can look a lot like a court process, it is private and much faster than litigation, and the spouses can decide how the arbitrator will manage and decide their case.   In some cases, you can hire the professional to act as a mediator first and then only become an arbitrator if you and your ex are unable to reach agreement through mediation.  This is known as med-arb.

3. Parenting Coordinators

The Family Law Act highlights the role parenting coordinators can have in helping people resolve disputes about the care of children once there is an agreement or final order in place.  Some things to know about parenting coordinators:

  • They may be a social worker, counsellor, psychologist, mediator or lawyer with special training.
  • They can be appointed by an agreement between you and your former spouse or by a court order for a renewable term of six months up to two years.
  • They can help you and your ex resolve new parenting problems as they come up, implement agreements about children, improve how you deal with conflict and how you communicate with each other.
  • They can also make decisions to resolve a dispute when conflict is urgent and you cannot resolve it yourselves.
  • The cost of a parenting coordinator is shared between you and your former spouse.

When making a decision about which out-of-court process to pursue, consider what will likely be most effective in your family’s particular circumstances.  Discuss these options with your former spouse, or have your lawyer send information to them on a process that makes sense to you.  But be flexible.  These out-of-court processes do take two willing people who desire to move ahead despite the pain.

Have questions about a family law issue? Contact us.

(This post was adapted from a fact sheet originally written by Rebecca Stanley for the People’s Law School). 

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