There are alternatives to going to court. Negotiation, mediation, arbitration and/or a collaborative law approach can enable the couple to resolve their separation or divorce issues without stepping foot in court. Ultimately you will need to apply to court for a divorce even if you settle all other issues by agreement (“all other issues” means parenting, support, property and debt division – also referred to as corollary relief). However, a divorce order alone is usually straight-forward and can often be obtained without an appearance in court.
Negotiation can occur directly between the spouses or it can occur through lawyers. The most common approach is one party makes an offer to settle and the other party either accepts, rejects, or makes a counter-offer. This process continues until an agreement is reached. The parties then embody the terms of the agreement into a formal document such as Minutes of Settlement, a separation agreement, or a consent order. The final agreement can be enforced by the court.
In family mediation, each party usually has his or her own lawyer and they also work with a neutral mediator who helps them come to an agreement, often on all aspects of their separation. A good family law mediator is well-versed in the law and skilled at assisting parties to bridge the two perspectives. Whether or not the parties’ lawyers attend the mediation itself, each party will consult his or her own lawyer before signing a final agreement.
A family law arbitrator provides a service that can be compared to the parties agreeing to hire a private judge, whom the parties authorize to decide for them. The arbitrator must make a decision in accordance with the applicable law. The parties themselves decide how the arbitration will take place including whether or not their lawyers will be present. There are a standard set of rules of procedure that are generally followed which are much simpler than the rules for a formal trial. The parties are generally “stuck with” the decision of the arbitrator, though it can be appealed (to court) in certain circumstances.
In the collaborative law scenario, each party retains his or her own lawyer who is trained in the collaborative process. The fundamental difference with collaborative law is that the parties and the lawyers sign an agreement at the outset that they will reach a settlement without court. If the parties cannot reach agreement and/or one or both parties decides to litigate, the lawyers must quit the case. During the process, the lawyers help the parties negotiate an agreement, sometimes with the input of neutral experts such as therapists and financial planners.