Resolution Options
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Ways to Reach Resolution:
Preparation of Agreement
When you and your spouse have agreed on all terms between you and after proper investigation by your lawyer, an agreement can be drawn up by either your lawyer or your spouse's lawyer for execution by each of you. There are certain criteria to be met to ensure that the agreement will not be easily set aside. You should know, however, that custody and access issues are never final and can be varied if there is a material change of circumstances.
Negotiations
The objective of negotiations is to arrive at an agreement that you and your spouse will continue to honor far into the future.
The negotiations can be with the parties' lawyers only or in four way meetings (you, the other party and the two lawyers).
The negotiations between lawyers can be conducted over the phone, in person or by letters. This process requires each lawyer to get instructions from each party prior to, after and maybe during each communication. Your lawyer will not commit you to any terms without your explicit instructions.
The four way negotiations can be held in either lawyer's office or at a neutral location. As issues are resolved, they are usually put into Minutes of Settlement and later into an all encompassing agreement.
Sometimes, negotiations can break down but handled skillfully by the lawyers, they can result in successful and early resolutions.
Mediation
The parties may opt to use a mediator who is trained to assist parties to reach agreement in one or all of their family law issues. The mediator does not give legal advice.
There are different types of mediation and the mediator will require the parties to sign a mediation agreement outlining the terms of the mediation process.
If the parties are able to resolve their issues through mediation, the mediator will provide an outline of the agreement, or in some cases prepare the agreement, and the parties will then each obtain independent legal advice prior to signing the agreement.
Mediation may not be advisable when there is an imbalance of power between the parties or a history of violence.
Collaborative Practice
Couples are finding this relatively new process to be the most respectful, faster and most cost effective way to resolve their disputes.
The key ingredient of this process is that the parties and each of their lawyers enter into an Agreement which provides that none of the parties will resort to or threaten to go to court. If either of the parties commence litigation, neither of the lawyers or any other lawyer in their firm can represent any of the parties and the information disclosed in the process cannot be used in the court action unless agreed to by the parties.
The fear most clients express is having to start all over again if the process breaks down.
Rest assured however that the lawyers are trained in the collaborative process and can use their skills to diffuse the hostilities which may arise at any given time. In addition, the lawyers have a vested interest to help the parties reach a resolution because if they fail to do so, then they both lost a client.
The process uses four way negotiations to reach win-win solutions and depends in large part on the lawyers' problem-solving and listening skills rather than on their adversarial skills.
When an agreement is reached the lawyers jointly participate in the preparation of the agreement.
Typically the collaborative process may take a few meetings, depending on the complexity of the case, in comparison to months (sometimes years) in court litigated cases. This translates into thousands of dollars saved.
Court Process
It makes sense to avoid going to court but sometimes this cannot be avoided. For example in a volatile relationship where one spouse is fearful of the other spouse or when one or both of the spouses are deeply entrenched in their positions and feelings of anger and revenge outweigh rational thinking.
It is a very costly process and invariably there are no real winners. The hostility that can damage the relationship between parent and child sometimes cannot be repaired and parties sometimes overlook the emotional and financial cost of "winning". Furthermore, Judges may make decisions which please neither party.
Often overlooked is the danger of having court costs awarded against a party. Nonetheless, the process is there for those who need it. Let your lawyer guide you with respect to the advisability of resorting to court actions and for each step in the process.
