By Sharon Silbert
Although many assume that most separating couples need a judge to settle things for them in family court, research published in the April 2015 edition of The Lawyers Weekly confirmed what many who practice in the field have long suspected: less than 10 per cent of family law cases actually result in trials.
So how is it that over 90 per cent of family law cases end up getting settled? And what can individuals who are going through a separation or divorce do in order to resolve their legal issues more efficiently? Understanding the process options available for working towards settlement can go a long way to answering these questions.
“Traditional” legal negotiations
In “traditional” legal negotiations, the parties’ lawyers do the negotiating, exchanging proposals until an agreement is reached. Sometimes this is done exclusively via correspondence, and sometimes settlement meetings take place where the clients and lawyers meet face to face. Negotiations conducted by lawyers tend to be focused for the most part on what each side believes a judge would decide if the case went to trial. If the parties are unable to reach an agreement, either party may initiate court proceedings, and the same lawyers that were involved in the negotiations can represent the parties in family court.
If an agreement is reached without anyone starting court proceedings, the legally-binding contract that gets signed at the end of the process is called a Separation Agreement. On the other hand, if an agreement is reached after the court process has been started, the terms of the agreement are outlined in Minutes of Settlement, which is also a legally-binding contract signed by the parties. After the Minutes of Settlement are signed, they get filed with the court for a judge to review. If the judge approves of the agreed-upon terms, he or she will turn the agreement into a Court Order.
Collaborative family law
For separating couples who want their lawyers to be involved in negotiating a settlement, but would like them to work cooperatively, Collaborative Family Law (also known as Collaborative Practice) is an effective alternative to the traditional approach to lawyer-led negotiations. At the beginning of the collaborative process, the parties and their lawyers sign a Participation Agreement committing to negotiating in good faith, and agreeing that the Collaborative Lawyers will be disqualified from acting if the matter goes to court. The purpose of this disqualification clause is to prevent either side from using the threat of court proceedings as a negotiation tactic.
In the Collaborative process, the family law issues are typically resolved through a series of settlement meetings during which the clients and the lawyers work to identify each person’s priorities and interests, and generate options to meet their needs. Negotiations may also include the participation of neutral professionals like financial or child specialists hired jointly by the parties. Terms agreed upon in negotiations are incorporated into a legally binding Separation Agreement. The parties get the benefit of legal advice throughout the negotiation process, from professionals who are trained to work together in a constructive way.
In mediation, the separating couple negotiates directly with the assistance of a dispute resolution professional called a mediator. The mediator will help the parties to work together in a constructive way, encouraging them to communicate respectfully and act in good faith. A mediator is not like a judge who can make decisions, but rather acts as a facilitator to help the separating couple make those decisions for themselves. Even if the family mediator has a legal background, he or she cannot give legal advice because to do so would compromise his or her neutrality. As a result, the participants either consult their lawyers periodically throughout the mediation process or, in some cases, may bring their lawyers to the meetings.
After an agreement has been reached in mediation, the mediator prepares a summary of its terms, which then goes to the parties’ lawyers for review. Once both parties have received independent legal advice and the terms of the agreement have been finalized, the lawyers will draft a Separation Agreement for the parties to sign.
When both parties are motivated to work together in good faith, mediation tends to be faster and less expensive than other processes because the separating couple does much of the work involved in working out an agreement for themselves, and their lawyers are less actively involved in the negotiations.
While negotiated settlements allow for the people whose lives will be affected by the outcome to be the ones making the decisions, in cases where adjudication is necessary, the outcome is determined by a third party like a judge or an arbitrator. Sometimes an adjudicated outcome is necessary because an agreement cannot be reached. Starting a family court proceeding is also the only way to move forward in circumstances where one person is unwilling to participate in negotiations at all.
Court proceedings do not require co-operation between the parties, but they can be expensive and time-consuming, and can often contribute to an escalation of the conflict. The parties do not have any control over the outcome, and the decision-maker is often constrained in his or her decision making by the evidence available, the time and resources of the court and/or the parties, and the applicable laws.
Sharon B. Silbert, J.D. Acc.FM (OAFM) is a lawyer and accredited family mediator practicing in St. Catharines, Ontario. For more information about her practice, visit www.silbertfamilylaw.com
How Legal Aid Ontario is helping clients seeking to negotiate a settlement
Eligible individuals who are interested in alternatives to court can apply for Legal Aid Ontario (LAO) certificates to cover legal fees to have a lawyer help them complete a Separation Agreement, or provide them with legal advice through the family mediation process. These certificates are helping to ensure that Ontarians who cannot afford to retain counsel privately are not forced to turn to the courts, but can instead access the necessary supports to achieve negotiated settlements.
For more information, or to find out if you qualify for a legal aid certificate, call 1-800-668-8258 or visit www.legalaid.on.ca.