LITIGATION, NEGOTIATION, MEDIATION,
ARBITRATION AND COLLABORATIVE FAMILY LAW

The lawyers of Nathens, Siegel have extensive experience in representing clients in traditional court litigation, negotiating on behalf of clients both in and out of court, and participating in mediation, arbitration and collaborative family law.

Family law in Ontario has developed in recent years in an effort to keep disputes outside of the court room, wherever possible. Whereas the traditional family law dispute in the past was settled by a judge in a formal court system, participants in a family law dispute and family law lawyers today recognize that this traditional approach may be slow and expensive, as court dockets get backed up and the work load of judges increases. Further, the traditional approach leaves the decision making to a third party judge and often takes the power away from participants to make important decisions about their own lives and financial affairs.

An individual today who is involved in a family law dispute has options aside from court proceedings. These options are commonly referred to as "ADR" (Alternative Dispute Resolution)

In the ADR process, skilled lawyers, often working with the assistance of mediators and other family law professionals, work with participants involved in a family law dispute to assist them in negotiating an agreement that is tailored to their own needs, and the needs of their families. Rather than resolving disputes through a formal court system with a judge as decision maker, clients are empowered to come up with their own creative solutions that offer more opportunity for the participants to come up with a "win-win" solution that is good for all involved, including the children who most often do not have a seat at the negotiation table or in court. The end result of a successful ADR process is a signed separation agreement drafted by lawyers and signed by the participants.

The ADR process may be used not only for the drafting of separation agreements, but also for the creation of marriage and cohabitation agreements between individuals intending to enter into a long relationship with one another who are faced with the task of negotiating their financial affairs before entering into the relationship.

Collaborative Family Law ("CFL"), which is a form of ADR, is increasingly popular in Ontario. The goal of CFL is to allow parties who are separating to separate with dignity, respect, and cooperation. In the CFL process, each spouse retains a lawyer to act as his or her advisor, and they conduct settlement negotiations with their lawyers by their sides in order to negotiate an agreement outside of court. The process may also include other professionals, such as financial planners, accountants, counselors, who, with the lawyers, assist the participants in coming up with creative solutions best for themselves and their families. The participants and the lawyers are required by the CFL process to be cooperative, forthcoming, and willing to work together to achieve resolution. In the CFL process, the participants agree before the negotiations begin that they are not to use the lawyers who assist them in the CFL process in any court proceeding. This ensures that the participants are truly committed to reaching a fair settlement at reasonable cost. For more detailed information about collaborative family law and mediation and arbitration, please link to the article written by Brahm Siegel for the Law Society of Upper Canada’s family law Bar Admission course on collaborative family law. (arrange link)

In some cases, even with the assistance of skilled lawyers and mediators, participants in a family law disputes are not able to reach a negotiated settlement. Rather than proceeding to court, the participants may opt to hire a neutral arbitrator to decide any outstanding issues. The advantage of arbitration over court proceedings is that the participants are able to choose their own arbitrator, whereas they are not able to pick their own judge, and the waiting time for an arbitrator to decide a case may be weeks, whereas the court system often takes months, or even years to reach a final resolution.

At Nathens, Siegel, we advise clients and prospective clients as to which method of dispute resolution best fits their individual needs and budgets. We have the expertise to assist clients regardless of the method of dispute resolution chosen.

ADR Links

• Divorce Magazine Ontario Collaborative Law Section
• Collaborative Practice Toronto
• Collaborative Family Law Association of Durham Region
• York Region Collaborative Practice