MEDIATION AND COLLABORATIVE LAW
Some family litigants may see mediation as an attractive alternative to litigation. At some level it is, but my opinion needs to be qualified.
I see a number of lawyers in this province (and in Ontario where I used to practice as well) advertising their services as mediators. The pitch made for couples going through a divorce or separation is that by hiring a mediator instead of a lawyer to launch a court proceeding, you are not only avoiding the stress of litigation, but also saving a great deal of money by mediating the dispute instead of going to trial.
While it may be less stressful to mediate, overall, I think it is generally impractical and potentially self-defeating to try to use mediation as an alternative to trial. Many of these mediators charge as much, if not more than most lawyers for their time and while the parties may agree to split the cost between themselves, they will still have to each hire their own lawyer to give independent legal advice prior to signing the agreement for it to be enforceable.
Also, most divorces do not end up in trial. In fact they rarely do. Many cases are settled at an early stage and many lawyers advise their clients about settlement options up front. If clients want an amicable resolution then lawyers can provide one.
Another point is that there is nothing preventing parties in litigation with lawyers from hiring a third party mediator (for a fee of course) or using judicial dispute resolution processes at no cost. Either option can result in a fast, inexpensive and relatively pain free divorce. Overall, I recommend consulting with a lawyer about all available options before making a final choice.
Another option that is marketed is that of collaborative family law. This is a particular ‘brand’ if you will, of family litigation in which lawyers who are certified as collaborative lawyers try to essentially engage in discussions without litigation, the reasoning being that it is a more respectful and less expensive alternative to traditional litigation for couples going through a divorce or separation.
Again, I think that many of the purported benefits of collaborative law are illusory. There is no reason why any lawyer cannot follow a collaborative type of approach in which a settlement or separation agreement is negotiated prior to starting litigation. This is indeed a common occurrence. Further, collaborative practice has the disadvantage that if the parties do not settle with the collaborative lawyers, both lawyers will withdraw and the money spent on them will be gone, but the parties will essentially be at square one in the process. Overall, I would not recommend that my clients go through collaborative lawyers.