The methods for obtaining a legal separation in most North American jurisdictions are listed below from least to most expensive. The first few alternates give you the most control over the final outcome, while the last and most adversarial ones leave you subject to a ruling by an outside party.
The extent to which you can co-operate with your ex will determine how much time and money the process requires.
Process Options for Dispute Resolution
quick if amicable
totally in your own control
oderate, especially when parties co-operate
quick if amicable
outcomes in your control, process in mediator’s
depends on availability of professionals
largely in your control
usually quite expensive
can be quick
not in your control
Court (self represented)
not in your control
court ordered settlement
Negotiation is a process by which disputing parties voluntarily agree to meet to try to solve their disagreement, without the intervention of any third party. The parties retain complete control over the process, and over the terms of settlement.
The negotiation process, when applied to divorce, can be emotionally and intellectually demanding, with compromises and concession normally required by both sides along the way. The risk of conflict is high, and for that reason the psychological rewards can be significant when the process is successful.
Mediation differs from negotiation in that a neutral third party is present to facilitate the decision-making process. The mediator assists the parties to communicate effectively without imposing any final decisions. The process is voluntary and can be terminated by the parties (or the mediator) at any time, without restricting the parties’ right to access more formal, legal procedures at a later date.
Family mediation requires the mediator to remain neutral, advocating for a balanced, fair process rather than for either party. When successful, the mediator produces a Memorandum of Understanding, which details the agreed-upon terms and is then forwarded to each party’s lawyer for review and advice before being converted into a legally binding Separation Agreement.
Parties who engage successfully in mediation have arrived at all decisions themselves, acting on their own authority. As a result they typically experience the same psychological empowerment that comes from a do-it-yourself negotiation.
Collaborative Law (or Collaborative Practice)
This is a voluntary process whereby both parties hire collaborative (as opposed to adversarial) lawyers and possibly other professionals such as accountants or psychologists, who work together to arrive at an agreement. The disputants, plus each of their collaborative lawyers, will meet together to try to reach agreement without litigation. To ensure the lawyers on both sides act in good faith, collaborative lawyers are disqualified from advocating for their client in court if the matter proceeds to trial.
In this approach, all decision-making power remains with the parties in dispute. Lawyers offer advice but decisions are made by the client. The time frame is more directly in the hands of the divorcing couple than it would be with litigation, although it can be challenging to schedule joint sessions with many participants.
Paying for two lawyers at each session (in addition to other professionals when necessary) can be very costly. Since the clients, not a judge, determine the outcome, the likelihood that each side will be satisfied is greater than when parties go to court.
Arbitration (and Med-Arb)
Arbitration is a voluntary process in which a neutral third party intervenes to make a final, binding decision. Arbitrators usually decide on the basis of legal rights but may also explore complex underlying interests.
Unlike mediation and collaborative practice, arbitration is governed by legislation in most jurisdictions. Arbitrators are therefore more highly regulated than mediators, without advocating or offering advice to either party. The process is more formal than the previous methods, often resembling a trial.
Typically the lawyer representing each side pleads the client’s case to the arbitrator. The arbitrator acts much like a judge by deciding between the two arguments, pronouncing his/her decision as an “award”. The process is less costly than a court trial but, as with litigation, has the disadvantage of removing decision-making authority from the parties in dispute. For couples who are unable to settle their differences, voluntary arbitration offers relief.
A recent variation of this is called Med-Arb, short for Mediation-Arbitration. This is a voluntary process whereby parties in dispute hire a Med-Arb practitioner (a mediator who is also a licenced arbitrator) and attempt at first to resolve their issues through mediation. The parties agree that if they are unable to reach a settlement through mediation, then the neutral third party will switch to the role of arbitrator, at which time he or she has full authority to impose a final, binding resolution.
Court (Self-Represented or with a Lawyer)
Court is an involuntary process whereby a neutral third party, a judge, intervenes to make a final, binding decision. Strictly governed by legislation, litigation proceeds by formal steps that take the process and the final decision out of the hands of the parties in dispute. Participation is not voluntary. A party is compelled to attend court when sued for divorce as with any other lawsuit, and is legally bound to comply with the judge’s decision. Although the court system has evolved to be as fair as possible, it is an impersonal system designed to address legal rights, not individual needs and interests.
Litigation can take years to resolve, at enormous expense, for results that are rarely satisfying. Due to the high legal costs, Family Courts in Ontario, the jurisdiction where I live, routinely find that from 50 to 70 percent of all disputants in divorce court are self-represented. This strategy reduces costs but contains many inherent risks, particularly if your former spouse retains a lawyer. Unfamiliarity with court language and procedures puts a self-represented party at a disadvantage that can influence the outcome.
Hiring a lawyer provides greater protection but is very expensive. The court process is heavy-handed and slow. Courts seek “the best interests of the child”, but are not well-designed for attaining them.
For these reasons and many others, the Province of Ontario, along with many other jurisdictions, has instituted a Mandatory Information Program (MIP) to inform divorcing couples of their options. When the agency that manages the courts advises you to avoid the courts, you are wise to listen. Most couples do. At this point in time well over 95% of all divorces get resolved as “undisputed”. This term does not really mean that there are no disputes, but that they are resolved outside of court.
The Alternative Dispute Resolution (ADR) industry has developed options that enable all but the most intransigent couples to come to agreement in a manner that is preferable to court.