What are the different ways to settle a Divorce?
By Camille Boyer, Calgary Family Lawyer
There are essentially two ways to resolve all matters between spouses: reaching an agreement, or having a decision imposed by a third party. If spouses can reach an agreement, then they would sign a legally binding contract outlining the terms. If unable to reach an agreement, the parties would seek a decision on the matters in the Courts or in private arbitration.
Informal negotiations can take place at any time and sometimes occur while other process options are being pursued. Some parties are comfortable discussing settlement between themselves, or perhaps with the assistance of a family member or friend. Parties may choose to obtain legal advice or legal coaching while they negotiate directly with their spouse, as an effective means of reducing legal fees while still having the benefit of the assistance of a lawyer.
Alternatively, the negotiation process might involve one or both parties retaining a lawyer. The negotiations could follow a format of offer letters going back and forth, or settlement meetings (ie. both parties attending a meeting to negotiate with the assistance of their lawyers).
Collaborative Law is a process to settle a Divorce in which the spouses each retain a trained collaborative law lawyer and sign an agreement committing them to work together cooperatively, and to not use the traditional litigation process. Collaborative matters progress through informal conferences/meetings during which information is shared freely and issues are mediated or negotiated with the shared goal of reaching an agreement. While collaborative matters can involve experts such as financial advisors, business valuators, or parenting experts, any expert retained is retained by the parties jointly. In the event either party opts out of the collaborative law process, then both parties are required to retain new counsel. After doing so, they are free to pursue litigation.
Mediation is a process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial and neutral third party. The mediator assists in reaching a mutually agreeable resolution by facilitating the mediation process, promoting respect of the process and ensuring there is effective communication. Mediation can address any issues in dispute.
When negotiation, alone, is not sufficient to resolve some or all matters, mediation can often be successful due to the involvement of a neutral third party who is trained in resolving disputes. There are many advantages to pursuing a resolution through mediation, which include efficiency, privacy, and informality. In addition, mediation is often far more cost effective than litigating a Divorce, and it allows the parties to be in control of the result, and to be creative with solutions.
While mediation may not always result in a settlement, it is still an important next step in resolving a Divorce. All litigants are required by the Alberta Rules of Court to attempt settlement through some form of formal alternate dispute resolution prior to scheduling a trial. A Mediation session satisfies this requirement.
Arbitration is a binding process in which disputing parties present their case to an independent, qualified individual (the “Arbitrator”) who renders a decision on the matters in issue based on the evidence and testimony presented. The parties agree in advance to be bound by the Arbitrator's decision, and they execute and Arbitration Agreement. Arbitration ultimately results in the Arbitrator issuing a binding decision through an Arbitration Award. Although it is not possible to litigate once and Arbitration Agreement has been executed, an Arbitration Award is subject to appeal, or to enforcement proceedings.
The main disadvantage of arbitration is that it is only available if both parties agree and sign an arbitration agreement. However, once that agreement is executed, it is a binding process. Even if one party chooses not to participate, a final resolution can be achieved.
Mediation/arbitration consists of two separate and distinct phases. The first phase provides parties with an opportunity to reach a mutually agreeable resolution to their dispute through mediation. The second phase occurs only in the event the first is unsuccessful and is essentially a private trial in which a binding decision is rendered by neutral third party.
This option has the same advantages as mediation but addresses one of the main disadvantages of mediation by having the arbitration process impose a binding resolution on whatever issues were not settled through the mediation process. While the parties to an arbitrated resolution are no longer in control of or able to be creative with the outcome, this process still ensures that the dispute will come to an efficient and relatively cost-effective end.
In some circumstances, parties will agree to retain a Parenting Coordinator (PC) to deal with ongoing parenting disputes. This is a form of mediation/arbitration, as typically the PC will have arbitration authority over limited issues, such as a parenting schedule, extracurricular activities, or medical treatment for the children.
There are a number of mediation programs provided by the Courts to assist litigants in either resolving their dispute, or meeting the requirement to attend alternative dispute resolution before setting a trial. Some of these options have minimum-income or other requirements to be eligible.
The Family Mediation program and the Dispute Resolution Officer program are both free mediation programs, although there are some limitations on the topics or situations that will be appropriate, or minimum income requirements. In addition, the Court of Queen’s Bench also offers the Early Intervention Case Conference (EICC) or Resolution Counsel (RC) programs which are either Judge or lawyer-assisted mediations with specific requirements such as income or being a self-represented litigant. All documents and discussions in these forums are confidential and “without prejudice”. They cannot be used in Court proceedings unless the parties reach an agreement or as otherwise specified.
Judicial Dispute Resolution (JDR) is a confidential pre-trial settlement meeting conducted by a Justice of the Court of Queen’s Bench. Similar to any other mediation, all documents prepared for a JDR and statements made by counsel, or by the parties are confidential and “without prejudice”, and cannot be used for any purpose or in any proceeding other than the JDR. JDR’s can be non-binding (similar to mediation) or binding (similar to arbitration).
One significant downside to most of the Court-facilitated mediation processes is the eligibility requirements or the limited availability. Wait times can often be significant, whereas scheduling and attending private mediation is often much quicker.
Litigation involves parties taking their dispute to court to have a Judge or Justice make a decision. It is a highly adversarial process and is generally not a preferable method of resolving a Divorce. Any issue in a Divorce, including parenting, can be resolved through litigation.
Although many interim applications and decisions may occur prior to trial, a resolution through litigation ultimately culminates in a trial. This typically involves the parties and other witnesses, if any, testifying and being cross examined in open Court. Interim decisions can sometimes be made with or without live testimony in morning chambers, a one hour Domestic Special or a half-day Domestic Special. The Court also can obtain assistance from a parenting expert or mental health professional through expert testimony, which may include a Practice Note 7 or Practice Note 8 Intervention. Following the trial, the Judge or Justice renders a binding decision through a Court Order or Judgment.
In the event one or both parties refuse to engage in any form of dispute resolution other than litigation, or if settlement attempts have proven unsuccessful, then litigation becomes the only option. Litigating a Divorce all the way to trial will inevitably be time-consuming, stressful, and exceedingly expensive. Therefore, it is quite common for matters to begin in the litigation process, and then settle at some point along the way before trial.
The Calgary family lawyers at Crossroads Law is experienced at all the different ways of settling a divorce. We also provide divorce mediators who are trained in resolving family law disputes. Contact us now for your free consultation.