Part 2 was about preparing for your first meeting with a lawyer.  Your meeting has ended and your lawyer has given you three main options for how to try to resolve your issues: go to Court and let a Judge decide, mediate and maintain the power of resolving your own issues without a Judge’s help, or collaborate with your lawyer, your spouse’s lawyer and the two of you, again without a Judge’s help.

Which option to choose is a big one that will have a huge impact on how long the resolution process will take and what your relationship with your former spouse will be after the process is over.  The option you choose will also have a huge impact on how much legal fees you spend.

1. Most people think that they must go to Court once they decide to separate.  Such is not always the case.  Going to Court can be extremely expensive; not just financially, but emotionally, mentally and physically.  Preparing for a Court battle is hard work and can be quite tiresome.  You will miss time at work and it will likely impact on your overall health.  

“Going to Court can be extremely expensive; not just financially, but emotionally, mentally and physically”

Leaving decisions about your children and your future financial security in the hands of a third party who knows very little about your family and life outside of what is written in the pleadings your lawyer will file is scary to many people.  You lose the power and control to make decisions for yourself and your family when you leave decisions in the hands of a Judge.  

With all that said, many people must go to Court for help either because one or both parties are refusing to settle or reaching a reasonable settlement simply is not possible.  Your lawyer will advise when reaching a settlement appears impossible.  Court is an adversarial process where few friends are made.  It is designed to tear at the other side in the pursuit of victory!

2. Mediation is a process that is done on a without prejudice basis, meaning neither you nor your spouse or the mediator can tell anyone what you said or shared in the process. Normally, there are no lawyers present but you are free to obtain independent legal advice at any time throughout the process if you wish.  The mediator may be a lawyer but he or she is a neutral third party who does not represent either you or your spouse.

Make sure when you are looking to hire a mediator that he or she is properly trained and has the credentials to do a good job. Avoid hiring someone who claims to be a “mediator” but does not have the proper training.

Mediation typically will not work for separating couples who have experienced domestic violence while together or if there are any power imbalances at all. You and your spouse need to be on equal footing when it comes to negotiating and articulating what you want and why.  If you are scared of your spouse or have a history of “giving in” to keep the peace, mediation will not work.  Mediation can result in a resolution more quickly than Court can and is a fraction of the cost.  Generally, spouses share the costs of the mediator.

“Mediation typically will not work for separating couples who have experienced domestic violence”

3. Collaborative Law is a relatively new process in New Brunswick.  It has been practiced in Ontario, for example, for a number of years.  This process is done with each party having a lawyer trained in collaborative law who signs a contract promising he or she will not go to Court for their client if the process ends without a settlement.  The hope with such a contract is the parties and their lawyers will work exceptionally hard to achieve a settlement.  A key difference with this option compared to the other two is in collaborative law, the parties negotiate from an interest-based position as opposed to positional-based sides: I would like this because as opposed to I want this no matter what!

“A key difference with this option compared to the other two is in collaborative law, the parties negotiate from an interest-based position as opposed to positional-based sides.”

The collaborative process is less expensive than going to Court but can be more expensive than mediation due to the involvement of two lawyers and may take longer to conclude.

Hire wisely and choose carefully! Take the necessary time to become fully informed and then make your decision with confidence.

All for now – until Part 4,