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Legal Issues


Collaborative law.

Mediation is a process in which the two sides of a dispute work with a third party, a mediator, to reach an agreement, without having to go to court. It is in effect a sort of supervised negotiation. It has the advantage that the parties control the manner in which they resolve their dispute, as opposed to having a decision imposed upon them by a judge. Mediation, when successful, can be a very cost-effective way to resolve a dispute.

A mediator is a trained professional, and lawyers who represent themselves as family law mediators must be specially qualified in mediation by the applicable provincial Law Society.

The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is fair to all concerned, including the children of the relationship.

The mediator has no stake at all in how the mediation turns out, has no bias in favor of either party and has no special connection to either party. This position as a neutral third-party is probably the mediator's most important role. It allows the mediator to be absolutely frank with both parties, and point out when a party's stance on an issue is unreasonable or unrealistic.
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Is mediation appropriate for you?
Both parties must first agree to engage in mediation. Mediation will generally not be an appropriate process if one of the parties is reluctant or unwilling to engage in negotiation. Mediation will be much more effective and likely to be successful if each party sincerely wishes to resolve the dispute, and is prepared to make some sacrifice or concession in order to reach an agreement. Because the mediation process is based on a cooperative effort to achieve a common goal - a settlement - there is usually a lot less of the bitterness and acrimony that can accompany litigation.
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Selecting a mediator.
After agreeing to enter into mediation the parties will select a mediator. Most Family Law lawyers, who used mediation as an exit strategy, will have the names of one or two mediators with whom they prefer to work. The mediator acts as a referee to help the parties' structure the form of the negotiation and to ensure that the negotiations between the parties continue in a productive manner. A lawyer can act as a mediator, and can inform the parties of the legal issues involved in their case and advise them of the probable outcome of litigation. A lawyer mediator can also prepare a final agreement between the parties on the conclusion of the mediation.
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Tips for successful mediation.
In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are many things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

  • Try to focus on interests rather than on positions, and to ask yourself "Why not?" when you hear what the other side has to say.
  • Actively listen to what the other side is saying. "Active listening" means paying close attention to what the other side is saying, and restating their position to ensure that you know what he or she means, and to ensure that the other side recognizes that you're hearing what he or she is saying.
  • Talk directly about a problem in an forthright manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

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Things to do.
Respect yourself and the other side; be flexible and avoid absolutes; and, be honest and open. When you go into the mediation session, try to have a few options (alternatives) prepared, which you might be happy with, rather than rigid, fixed goal. Remember, you are trying to reach a negotiated settlement.

  • Dress comfortably and be prompt.
  • Bring any documents you were asked to bring with you. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
  • Be honest. Trust is essential to the mediation process.
  • Be empathetic. Respect how the other party is feeling and thinking.
  • Ask for a break if you're feeling too wound up or upset to continue, rather than abandoning the session.
  • If you disagree with something, say so. You must respect and articulate your own thoughts, opinions and feelings.
  • Watch your body language! Making disgusted grunts, rolling your eyes or slamming your fist on the table will not help anything.

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Things not to do.
Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator or the other party doesn't believe you, it will be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentfulness can also be triggers that undermine each party's faith in the other, and make litigation inevitable.

Try to avoid letting your emotions get tangled up with your analysis of the problem at hand.

  • Don't hide information, either financial or factual, on the assumption that the other party won't find out. They usually do, and if they do, the process is likely at an end.
  • Don't raise your voice or make comments that are hurtful.
  • Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what he or she is saying.
  • Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective.
  • Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
  • Don't make personal attacks or threats.
  • Don't play on the other person's sense of guilt or otherwise be emotionally manipulative. In other words, don't be passive-aggressive.

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What if the mediation fails?
Because mediation is considered part of a settlement process, all communications between the parties and the mediator are "without prejudice". This means that nothing that is said or proposed can later be introduced in court by one or other of the parties, should the effort to reach an agreement through mediation fail. At any stage of the mediation, each party is free to seek and obtain independent legal advice with regard to the matters under discussion. While it is not necessary to have independent legal advice, it is always a good idea.
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Cost savings.
Most mediation can be resolved in two to five sessions (usually about one hour each), with the lawyer-mediator then preparing a written agreement setting out the agreed-upon terms. Each party is encouraged to obtain independent legal advice before signing the agreement, but it is not necessary. The costs of mediation are usually shared between the parties.
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The bottom-line on mediation.
Mediation can be emotionally less draining and much more cost effective than litigating the issues between you and your former spouse/partner. It requires a willingness to negotiate fairly with the other side, and a willingness to give and take in order to reach a fair settlement.

If you feel that mediation might work for you, and are interested in learning more about this process, contact one of our experienced Family Law lawyers.
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Collaborative law.
Collaborative law another concept in family law alternatives. The purpose of the collaborative law process is to provide a non-adversarial way for each of the spouses to resolve their issues and emerge, at the end of the process, as emotionally and psychologically whole people. The process recognizes that couples legal difficulties are only one part of ending a relationship.

The people involved in this process are: the parties, their lawyers, and their divorce counselors. Together, these people form a team, which works together, collaboratively, to arrive at a resolution of all the issues that are outstanding between the parties. The collaborative law process seeks to address both the legal and the emotional consequences of the breakdown of a relationship.

An unique aspect of the collaborative law process is that once it starts, if a couple finds themselves unable to continue, the terms of their collaborative law agreement will require the spouses to fire their lawyers and obtain new lawyers to represent them in court. As you can imagine, this is a powerful financial reason not to stop the process!
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Are you suited for collaborative law?
Not every couple is, of course, suited to the collaborative law approach. This approach requires honesty and good faith, both to oneself and towards each other. Sometimes the breakdown of a relationship is so full of anger and bitterness that no mediated approach will work. Collaborative law is rather warm and fuzzy; if the willingness to use and embrace the process is not shared by both parties, it simply will not work.
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The other participants.
The collaborative law team is made up of psychological counselors ("divorce coaches"), family law lawyers, a "financial specialist" and a "child specialist" who work together with the spouses and their children. The degree to which each of these types of professional may become involved will depend on the particular circumstances of each couple. For some couples, the child specialist will become a key member, for others it may be their divorce coaches.
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The case manager.
This person is usually one of the divorce coaches. His or her job is to keep all of the team members informed of the team's progress and to keep everyone informed of any fresh developments.
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The lawyers.
As in traditional legal circumstances, each spouse's lawyer is committed to protecting his or her client's needs and interests. The lawyers advise their clients on their particular legal rights and obligations, and provide their clients with information about the law, and the likely long-term and short-term results of any particular course of action.
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The divorce coaches.
The divorce coaches are psychological counselors. They help guide their clients through emotional turbulence of the breakdown of a relationship and assist each party in maintaining an objective view of the situation. They may also help their clients develop their views on the issues and help them learn to communicate about difficult subjects.
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The financial advisor.
This person is a third-party to the process, someone without any duty to one spouse or the other and who is able to look at things objectively and impartially. His or her job is to present options to help the parties deal with the financial aspects of their relationship, in terms of both the present and the future.
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The child specialist.
This person's job is to represent the interests of the children as a neutral third party, without a duty to either spouse. While all the members of the process are concerned about the best interests of the children, the purposes of the child specialist are to ensure that the children remain a primary concern. He or she will ensure that the parties develop a proper parenting plan for the children, and to help identify and address concerns regarding the children's future care.
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The bottom-line on collaborative law.
If you and your spouse are committed to resolving things in a frank and respectful manner, collaborative law may be for you. Most of the lawyers you will find through ExitDivorce.ca are collaborative family law lawyers, and will be able to assist you should you decide that this is the route you wish to take.

If you feel that collaborative law might work for you, and are interested in learning more about this process, contact one of our experienced Family Law lawyers.
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