Let’s think of family dispute resolution as a spectrum. On one side, there is bilateral negotiation between the spouses, or they may be assisted by a mediator who helps with their communications and settlement. The parties retain control over their own process. They may use a mediator or family lawyer for independent legal advice, but it’s their process and they are empowered as the decision-makers. On the other side of the spectrum is litigation, and this is where the decision-maker is now a judge. That judge may be assisted by legal counsel, but the mandate is as a third-party decision-maker. Between these process points of negotiation mediation as apart from the court, there is a range of other possibilities in balancing the party’s control over their own process structure which can include collaborative family law, a hybrid mediation-arbitration model (med-arb), cooperative negotiation, or family arbitration. These options may include specially trained individuals or specific residual issue resolution arrangements, but any such professional intervention respects the important dimension of the clients retaining control over their process decisions, timing, and settlement. Out-of-court processes generally seem more responsive to the client’s interests and timing than the public domain of court. At the same time, litigation may be considered appropriate as the necessary choice for reasons pertaining to the protection of the court.
For the most part, however, the court is viewed as the option of last resort. So no, you would not need to go to court, although the court may be viewed as a dispute-resolution option. In the event that the divorce mediation is at an impasse, you and your lawyer are more likely to consider a change of private family-dispute resolution, perhaps enlarging to a human-relations mediator for parenting issues or a family arbitration for any remaining financial issues. That’s the special attraction of the mediation: it’s adaptable to particular challenges that may develop in the client’s determined approach to get it done in a timely manner. A competent family mediator would be open to the parties’ consideration of other process options and may very well organize independent legal advice by the respective counsel on the point of the most effective next step. In my 18 years of experience as a divorce mediator, I have rarely if ever witnessed the jump way over to the extreme of court, at the first impasse.
Nigel Macleod practises family law, mediation, and Collaborative Divorce in Ottawa.