“There are so many divorce options: litigation, mediation, Collaborative Divorce. How do I decide which is best for me?”
It does not matter whether your case is complex or simple; if you have many assets or few; or whether the dispute is over money or children. The two most important factors are preferences (what you want) and power (what you can use to get what you want).
Preferences: You must first know what you want before you can choose a process. Is it the most money you can get? Is it fairness? Is it the outcome that most closely resembles what a judge would do? Is it the most amiable relationship for the sake of the children? Is it a quick settlement, so you can move on?
It is important to be clear about your preferences and also to try to ascertain what your ex’s preferences might be. That will help you determine the process most likely to get what you want.
Power: Power comes from many places: personalities (is either of you the kind of person who must have their way?); emotions(is either of you experiencing a lot of anger or guilt?); negotiation approach (do you both approach negotiation the same way, or is one of you a hardball negotiator and the other an accommodator?), and the history of the relationship (was there emotional or physical abuse? Does one of you have a mental illness, or a drug or alcohol dependency?).
Perhaps the most important source of power is the respective strengths of your alternatives to a negotiated agreement. For instance, if you have a strong case, your ex has a weak legal case, and you are able and willing to litigate, then you have strong negotiation power. But if you have no stomach or money for a court battle, litigation will not be a viable alternative for you, even if you have a good case.
All of these sources of power work together, and they can change as the process unfolds. If you feel that you cannot negotiate in the same room as your ex, your best option may be either lawyer negotiations or mediation with the two of you in separate rooms at all times. If you feel that your ex will never negotiate in good faith, you may need to start litigation.
Collaborative Divorce can be a good process for people who need the hands-on assistance of lawyers and other professionals to work out an agreement. The downside of Collaborative Divorce is that you cannot use the power that comes with the threat of litigation without incurring the expense of hiring a new lawyer. Because Collaborative Divorce can be very expensive and time-consuming, many high-conflict couples try mediation first because it is less costly, it operates on the same principles — a fair, safe, balanced and informed “problem-solving” negotiation — and it allows them to use the power that comes from the threat of litigation, if that is what they need to reach a fair settlement.
About the author of this Ontario Divorce FAQ:
Hilary Linton, B.J., LL.B., LL.M. (ADR) is the principal of Riverdale Mediation, which serves Toronto and southwestern Ontario.