There are many important decisions to be made during a divorce, but one of the first choices you must make is which approach you wish to pursue. The litigation process, divorce mediation process, and collaborative law process each offer unique benefits and drawbacks that will influence the outcome of your divorce. Learn about the various divorce processes available in Ontario to choose the approach that is best for you.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speakers: Family Lawyer – Gene C. Colman. For over 35 years, Gene C. Colman has been providing trusted legal guidance to clients facing the complexities of the family law system in Ontario and worldwide. He is trained in mediation and values alternatives to divorce litigation, such as collaborative family law. Learn more at www.complexfamilylaw.com.
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Read the Transcript of this Podcast Below.
When most people think about divorce, they usually think about the litigation process. Can you explain what the litigation process is, Gene?
Colman: As the name implies, it’s bringing a court case to have your rights vindicated, protect your property, divide property, deal with child custody issues and support. It’s a process whereby, in the final analysis, the judge will make the decision for you if you can’t settle issues along the way.
What are the benefits of the litigation process?
Colman: Yes, there are benefits if you are in a very pressurized situation. For example, if you are a spouse that has been left with no support and there is very little money to even put food on the table. Or if you are a parent that has had your children taken away from you and the other spouse won’t let you see the children, you can go to court on an emergency basis and you can obtain relief. You can have a judge say, “Well, spouse A has to pay spouse B X dollars of child support and Y dollars of spousal support.” Or the judge will say, “Yes, spouse A, you have to let spouse B see these children and these are going to be the ground rules.” In Ontario you are able to achieve, relatively quickly in an urgent situation, some sort of results and see something actually happen.
Another benefit of the litigation process is there is a defined structure and there are defined rules. The lawyers and the parties, even if there are parents who are self‐represented, have to obey the statutes, because we’re working within a certain structure. That gives orderliness to the process; the process goes through various stages and you can see an endpoint.
What are the drawbacks of the litigation process?
Colman: It’s good that you asked that question, because litigation in the court system has a number of drawbacks. When you are trying to establish a point, vindicate your rights, or even if you’re trying to, quite justifiably, protect yourself, one tends to make allegations against the other spouse that are inflammatory. It’s just a natural thing. Hopefully lawyers know better and they should know to keep that inflammatory rhetoric down, but some don’t. You want to prove your point so you will say things and write things in an affidavit, a sworn statement, or an answer that are very hurtful to the other side. Especially when there are children, you are going to have to have some sort of relationship into the future. You don’t have to be buddy‐buddy, but you do have to at least be civil. Once these allegations are down on paper and set out in very hurtful ways, it makes the post‐divorce healing process all that much more difficult.
Another drawback of the litigation process is that some lawyers tend to see it as their personal battle and they will personalize the fight. When that happens, you’ve the legal costs rise and, generally, you’ll have very dissatisfied litigants by the mid to the end of the process. Even when the litigation process is conducted professionally and responsibly, it tends to be fairly expensive.
In most cases, the divorces don’t end up going to court in terms of doing battle in court. It’s mainly that the lawyers work out an agreement with their clients. Is that how the process generally works?
Colman: Sometimes. Certainly if there are no pressing, urgent issues that require court. If the two lawyers have a decent working relationship and can cooperate, then, yes, the lawyers will help work things out. The first step is to get all of the documents that are relevant to the case on the table in an organized fashion. Once everyone can see the documents, and what the value of this asset is, what the value of that asset is, what the amount of this debt and that debt is, and have a look at the children’s report cards to get to know who the children are, then responsible family law lawyers are able to help the parties reach an agreement. Experienced family law lawyers will know, once they have the facts and the documents in the front of them, what the range will be with a judge. They may not be able to predict exactly, but they know the range. Based on that range, they should try to find a middle ground so that everyone can walk away at least partly happy or not too sad.
I’ve been working as the publisher of Divorce Magazine and in the divorce area for almost 20 years now. Gene has mentioned a number of times the value of working with an experienced family lawyer, and I cannot overstate just how important it is to choose a lawyer who you know focuses their practice area in family law, keeps their education up to date, and looks for alternatives to litigation, which we’re going to talk about now as well. Can you tell me what divorce mediation is?
Colman: Yes. I very much am a strong proponent of mediation in appropriate cases. Mediation is a process whereby the two sides pick a neutral person. Let’s say we’re dealing with the care of the children: the custody, the access, the parenting plan. We will, in that case, often get a mental health professional, a social worker, or a psychologist who is trained in mediation. The role of the mediator is to help the parents reach their own agreement.
People like to be heard. Parents want to tell their story. They want to show how they were the best parent. That process of venting, or even expressing ones hopes and aspirations and hurts and fears, as well, to a mediator, can be very cathartic. A mediator knows how to receive this narrative from each parent, understand each parent, and then point out to the parents some possibilities that might work for their child based on the mediator’s knowledge of the family and based on the mediator’s knowledge of other cases. The mediator helps the parents to generate options. The mediator suggests options and tries to bring the two sides together to come up with a parenting plan that will meet the needs of the child or children. It’s a very healthy process. I must emphasize, however, that a mediator does not make a decision. It is the parent that makes the decision. The mediation process can be very empowering. If you’re dealing with financial issues then you’ll likely want a mediator who is a lawyer. Some lawyer mediators are also very good at custody access. Myself, I have a preference for social workers when it comes to custody access and I have a preference for lawyers and financial analysts or accountants when it comes to financial issues—but
there’s no right or wrong answer here. There are lots of mediators listed in various mediation services and there’s the Ontario Association of Family Mediation. You can find its website and there are credited mediators listed. The main thing is to consult with your family law lawyer, find a good mediator, and go through that process if the two sides are able at least to be civil.
Is mediation mandatory in divorce cases in Ontario?
Colman: No, it is not. There is a movement to make it mandatory. In certain jurisdictions in Ontario, mediation is mandatory in regular civil cases, but in family law cases it is not. There is a concern with domestic violence cases where the power balance between the parties just isn’t there. Some lawyers say that a good mediator can rebalance the power balance, while others say that domestic violence mediation is contraindicated. There is a difference of opinion there, so one should follow the advice of one’s own lawyer there. Mediation is not mandatory, but I highly recommend it where it is appropriate.
It sounds like you’ve touched on some of the benefits in describing mediation and also some of the drawbacks. Are there any other benefits or drawbacks that you want to mediation?
Colman: I think I’ve pretty much covered the benefits. The drawbacks would apply if you need immediate relief. For instance, if you need a support order and the other spouse isn’t coming up with the money even though they have the ability, then mediation is contraindicated. If the other side is not very frankly disclosing their assets and liabilities, don’t go to mediation. Both sides have to recognize that full disclosure is required at the outset during mediation. If there’s any resistance on the disclosure end, I would just cancel the mediation and move to some other process, possibly court. I’ve talked about this when lawyers are negotiating, but it’s also important in mediation: the facts and the documents need to be on the table at the outset. If that’s not going to happen voluntarily, then mediation is not the way to go.
Can you explain what the collaborative divorce process is?
Colman: Yes. Collaborative divorce, or collaborative family law, is a process of dispute resolution that arose and became popular around 10 years ago. It started in the United States and it spread to Canada and elsewhere around the world. It is very, very unique, and let me explain that. Each side retains their own family law lawyer, just like normal. Everybody signs an agreement that says they are committed to solving their family law issues, are going to do so in a cooperative collaborative fashion, and they’re going to stick at this until they reach a deal. The best intentions don’t always turn out, so what happens if one side thinks they’ve had enough of this collaborative law stuff and want to go to court? If either side decides to go to court, both lawyers are terminated.
When you say that they sign an agreement, do you mean that the divorcing parties as well as the attorneys sign this agreement?
Colman: Yes. They all sign the agreement and if one side decides to court—as they have a perfect legal right to do under this process—that’s it for those lawyers. You’ve been working with this lawyer who knows your case and then you are obliged under the collaborative family process to go to another lawyer if the case goes to court. So everyone has an interest in keeping the collaborative process going and keeping it co‐operative to try to reach an agreement. It really, really works in many cases. I rather like it. To be a collaborative lawyer, you have to go through special training and then you join your local collaborative law association, which the various communities in Ontario have.
What are the benefits of using the collaborative divorce process?
Colman: You are forced to stick at it until you reach an agreement, unless you want to lose your lawyer—and normally people don’t want to lose their lawyers. They’ve spent a lot of time and money educating the lawyer as to their case. The lawyer knows the case and they want that lawyer to continue. That’s the benefit. It frequently keeps the matter out of court and it forces you to really roll up your sleeves.
Let’s compare collaborative to mediation. These are similar because both are trying to have the parties reach their own agreement. In mediation, you can walk out any time and you’ve still got your lawyer advising you in the background and you keep that lawyer; but in collaborative, you cannot keep that lawyer.
In a collaborative situation, do the divorcing parties and their attorneys sit together in one room to discuss the issues of their divorce?
Colman: Yes, they do. Not every meeting would necessarily be like that—sometimes you have separate meetings and the lawyers will talk over the phone—but, yes, the process involves the four of them sitting together and working on the issues.
Do you see any drawbacks with the collaborative divorce process?
Colman: If one of the parties isn’t sincere about reaching an agreement, then you’ve spent a lot of time with your lawyer and, through no fault of your own, you’re going to have to terminate that lawyer’s services and find another lawyer to take the matter to court. That’s the drawback.
In summary, Gene, you’ve talked about litigation, you’ve talked about mediation, and you’ve talked about the collaborative process. Is there anything that you would say to a divorcing person who’s listening to or reading this teleseminar about how they should approach their divorce or what they should be thinking about as they contemplate what process is right for them?
Colman: You and I have covered this, but it bears repetition: retain an experienced lawyer who confines his or her practice, or a major part of his or her practice, to family law. Don’t hire somebody that dabbles. That applies whether you’re going through mediation, litigation, or collaborative law. You need somebody experienced.
Number two: get your financial documents and other documents relevant to the case organized and on the table. In cases where you’re dealing with a formal marriage as opposed to common law, there are three key dates: the date of marriage, date of separation, and current. You need your documents to support your values of assets and liabilities as to all those dates. No matter what the process is, you need to get your financial disclosure together and the sooner you do it, the better.
The third thing I would say is to try. No matter what process you are in, try to understand your spouse. What does he or she want? Why does he or she want something? What are the psychological pressures on the other spouse? Try to see it from his or her point of view. If you do that, you’re going to go a long way to finding solutions, no matter what process you’re using.