Litigation is an adversarial process. It is considered a public process involving the court.

Process:

The party who commences litigation is known as the “Applicant”, and the party who responds is known as the “Respondent”.  Each party, whether the Applicant or the Respondent, can make claims for the court’s determination. There is no advantage in being the Applicant over the Respondent.

When a party starts an Application requesting relief from the court in the context of their family law dispute, the Responding party must file an Answer, or risk the court granting the Applicant’s relief.  In this way litigation, unlike alternative dispute resolution avenues, is not voluntary.  Decisions can be made in your absence if an Application has been made to the court.

In the litigation process, if parties are unable to reach a decision on their own, ultimately a Judge will decide for them both on interim/temporary issues (at a motion) or at a trial (final issues).  A Judge has the jurisdiction to re-apportion costs to the unsuccessful party.

Sometimes, litigation is the only avenue available.

Examples are:

1. When the other party is not interested in resolving the dispute privately, or the other party is evading dispute resolution
2. In the case of an urgent issue that requires the court’s immediate intervention (e.g. child abduction)
3. When a party feels their safety may be compromised (e.g. the court can assist with retraining orders)

Litigation results in a court order that can be enforced.  The process is governed by the Family Law Rules resulting in certainty and consistency.   Sometimes, the authority of a Judge can be of assistance in encouraging parties to become reasonable about settlement.

Christine Marchetti is a Ontario Association for Family Mediation (OAFM) accredited family mediator (AccFM) and offers mediation services in-person and on-line.  She welcome inquiries from parties who are seeking assistance in dealing with their family law matters through the mediation process.

Mediation is a private process facilitated by a mediator assisting parties to reach a settlement. Participation is voluntary.

Mediation may be attended with or without counsel. If parties attend without counsel, they will still need to retain a lawyer to draft an agreement and secure independent legal advice on the terms of the agreement. One lawyer cannot act for both parties as this would be a conflict of interest.

Mediation is facilitated by a senior family lawyer, sometimes a retired Judge, known as the mediator. Although a lawyer may serve as a mediator for both financial/property and child related issues, sometimes parties choose to mediate only the parenting issues with a social worker who brings a special skill set to parenting mediation. A lawyer can mediate both financial/property and child related issues, whereas a social worker cannot mediate financial issues. The mediator assists the parties to reach a settlement on their various issues. It is important to note that a mediator does not decide for the parties as a Judge would. A mediator can make suggestions, recommendations, and opine on the best way forward. Ultimately, it is the parties who craft their own agreement. The final terms of settlement are crafted into a separation agreement that is signed by both parties. Although not an order, an agreement may still be enforced by the court.

Mediation is an alternative dispute resolution process.  As parties work together towards a resolution, there is real “buy-in” on the terms.  The agreement is crafted pursuant to the laws of Ontario but because it is not a court process the parties can include language that a court does not have the jurisdiction to include. These may include property and support releases.

Mediation can be successful even when there is a high degree of conflict.  Shuttled mediation, for example, means the mediator moves from room to room such that the parties do not need to sit across from each other in situations where face-to-face negotiation may be a challenge.

As mediation is a private process, there is control over who you retain as a mediator and can be efficient as there is more flexibility with scheduling.

Arbitration is a voluntary, private trial process. Typically following mediation if no resolution has been reached.

Often parties choose to mediate. If mediation fails, they move towards private final dispute resolution, or arbitration.

Arbitration is a private trial.  Rather than a Judge sitting in a court, an arbitrator (a senior family lawyer or sometimes a retired Judge) conducts the process in a private setting. The rules used at a trial are also used in a private arbitration, particularly the rules of evidence.

At the end of the arbitration the arbitrator makes an award, similar to an order made in court.  An arbitration award may be turned into a court order and may be enforced.  Much like a mediation, there is control over who you select as your arbitrator and can be quite efficient as there is flexibility with scheduling.

• Parties pay the cost of the arbitrator privately

Each party retains their own counsel and, through the assistance of counsel, work towards a negotiated settlement by way of a separation agreement.

Many parties resolve issues arising from the breakdown of their relationship without the assistance of the court, mediation, or arbitration. Each party retains their own counsel, and through the assistance of counsel, work towards a negotiated settlement by way of a separation agreement.

The parties put forward their respective position on the identified issues through their counsel by way of written correspondence, discussions between counsel, and with the assistance of financial disclosure. The parties may meet with their counsel, at a four-way meeting, where they work together to reach terms of a separation agreement.

Parties who begin negotiated settlement can finalize matters with the assistance of mediation, however parties who engage in negotiated settlement are often able to resolve their issues with the assistance of counsel and without ever engaging in mediation.

Collaborative family law (or collaborative practice) is where parties work together to resolve the issues arising out of the end of their relationship with the assistance of their family lawyers.

Similar to mediation, each party requires their own lawyer – the same lawyer cannot act for both parties. Collaborative Law is an alternative dispute resolution process and it is voluntary.

During this process you may also work with other collaborative professionals such as a financial specialist (to assist with financial issues such as property division and support) or social worker (often brought on to assist with parenting issues such as the children’s schedule).

Collaborative professionals work together with you and your partner to assist in reaching an agreement on your family law issues. The collaborative professionals involved in your matter should offer a safe environment to help reduce and/or limit conflict. Usually there are several meetings with the collaborative professionals before there is an agreement on the issues.

In engaging in the collaborative process parties agree, in writing, that they will not go to court – this eliminates either parties’ ability to threaten court as a tool to get what they want.  What makes Collaborative Law unique is that it takes an interest-based approach to problem-solving rather than a rights-based approach. This doesn’t mean the law isn’t considered – the law informs your collaborative professionals. It does mean that interests are respected and considered to help the parties reach the best solution for their specific issues.  In eliminating the threat of court, parties are highly motivated and committed to reach a settlement.  The process results in a separation agreement.