This is a dispute resolution process that tries to resolve issues out of court. It uses a respectful and non-adversarial approach to deal with the various issues that often arise following separation. While the law is still considered, the interests of each party are a key part of this process. The Collaborative process allows an opportunity to be creative in both the approach and settlement options to help move the parties forward in the best way possible.

All aspects of the parties’ situation are considered, including the emotional state of the parties and/or children, and the finances. This holistic approach allows parties to deal with the separation, which is often emotionally charged, in a supportive environment.

Collaborative practice uses a team approach in that it provides support and guidance not just from the lawyers, but from qualified professionals, including the Family Professional (a social worker) and a Financial Professional. These are neutral professionals who have an expertise that can help each party and help the process move forward in a positive manner. It is because of this team approach which makes the collaborative process one that works even in high conflict situations.

Both parties retain collaboratively trained lawyers and then execute participation agreements, whereby the parties agree to work cooperatively and honestly towards settlement, including providing full financial disclosure. Further, it is agreed that if negotiations break down, the existing professionals will withdraw, and both parties must retain new lawyers to take the matter to court.

The Collaborative process is supportive, less stressful, dignified and respectful, which can lead to outcomes that better reflect the family’s needs.

Kim is a Collaboratively trained lawyer and also sits on the Board of Collaborative Divorce Toronto.

A negotiated settlement is where both parties retain their own lawyers and discuss the issues outside of court. They work towards reaching a final resolution. Issues and discussions occur through lawyer correspondence, phone calls and possibly at a four-way settlement meeting. The terms the parties agree upon get incorporated into a Separation Agreement. If there is an impasse on any issue that cannot be resolved between the parties and counsel, the parties can agree to seek the assistance of a mediator. However, often the lawyers and parties are able to resolve all issues without the need to engage in mediation.

This is a binding contract that sets out the details of the agreed upon terms arising from the separation. It often includes issues such as parenting, support, property division, what is happening with the matrimonial home, divorce etc. Separation Agreements are reached after full financial disclosure is exchanged. While not required, both parties should also obtain independent legal advice prior to signing the Agreement.

It can also include changes to an existing Agreement.

Mediation is a private dispute resolution process that uses a neutral mediator to assist the parties in reaching a settlement. The mediator is often a senior family lawyer who is trained as a mediator. They are able to help on all issues including parenting, support and property. However, there is also the option when dealing solely with parenting issues, that the parties attend mediation with a trained social worker or psychologist. These professionals have a special expertise dealing with high conflict, communication issues and are child-focussed.

Some or all issues can be mediated. Parties can also attend with or without lawyers. However, it must be kept in mind that mediators cannot provide legal advice to either party, as they are neutral. As such, it is always advisable to attend mediation with a lawyer who is there to advise and ensure your best interests are being advanced or to retain a lawyer to provide legal advice in the background while you attend mediation.

If an agreement is reached at mediation, the mediator will either prepare a Memorandum of Understanding setting out the terms that are then to be incorporated into a comprehensive Agreement by the parties’ lawyers or the mediator will prepare a draft Agreement that each party can take to their respective lawyer for review and legal advice.

This is when a lawyer is retained to provide assistance on a specific aspect of their case, while the party performs the rest. For example, the party may solely want the lawyer to assist with:

• Providing legal advice as requested and needed

• Preparing for and attending mediation

• Preparing financial documents such as a financial statement or net family property statement

• Preparing specific court documentation

• Preparing a Separation Agreement

• Doing research

• Providing a legal opinion

This can help a party limit the amount of legal fees the party incurs, while still getting some legal expertise.

Following a mediation without representation of a lawyer, you may require a lawyer to review a Separation Agreement that is drafted by either the mediator or the other party’s lawyer and obtain some legal advice. This often entails a meeting with you and the lawyer to understand the facts and issues, a review of the financial statements, net family property statement and back up documents to support the income, assets and debts of each party, as well as review of the Separation Agreement.

This is when a lawyer is retained through a Limited Scope Retainer to provide advice and guidance to help the party meet the needs and responsibilities of their case. The party remains solely responsible for all aspects of their case, but has the lawyer guiding them through the process. The lawyer advises and educates the party along the way, while remaining on the sidelines. This option helps limit the amount the party incurs in legal fees, while still gaining invaluable knowledge and guidance from a lawyer.