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Mediation And Collaborative Law

Some family litigants may see mediation as an attractive alternative to litigation. At some level, it is, however one needs qualified advice.

I see a number of lawyers in Alberta (and in Ontario where I formerly practiced) 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 it can be impractical and potentially self-defeating. Many of these mediators charge as much as (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 upfront. If clients want an amicable resolution, 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), 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” of family litigation in which lawyers who are certified as collaborative lawyers try to essentially engage in discussions without litigation. The reasoning being is that it is a more respectful and less expensive alternative to traditional litigation for couples going through a divorce or separation.

As previously stated, 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 actually a common occurrence. Furthermore, 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, leaving the parties essentially still at square one in the process. Overall, I would not recommend that my clients go through collaborative lawyers.

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