PROCESSES
NEGOTIATION
The most common way of resolving issues on separation is to negotiate the terms of a written separation agreement. Such an agreement resolves the child-related, financial and any other issues arising from the separation. Full financial disclosure must be made by each of the spouses before the agreement is entered into, regarding income, property and debts or other liabilities.
A separation agreement must be signed by both of the spouses before witnesses.
Although not mandatory, parties to a separation agreement should receive independent legal advice regarding the nature and the implications of the separation agreement.
COURT
Sometimes, one of the spouses will start a court proceeding on separation. Usually, this choice of process is a last resort, a decision made for reasons including the presence of urgent circumstances, a history of domestic violence, a spouse’s failure to provide full and timely financial disclosure or unsuccessful negotiations.
A court proceeding makes parties accountable for their conduct. Orders may be made in a court proceeding, both temporary and final.
Court proceedings are time consuming and costly.
For a variety of reasons, very few cases actually proceed to trial.
MEDIATION, MEDIATION/ARBITRATION AND ARBITRATION
Increasingly, separated spouses are turning to mediation, mediation/arbitration or arbitration as a choice of process for resolving their disputes. Unlike court, all of these alternative dispute resolution (ADR) processes are confidential. ADR processes are often faster and less expensive than court. Any such choice of process must be agreed.
Depending upon the circumstances, parties may attend the process with or without lawyers.
Mediation is a form of negotiation, conducted with the assistance of a jointly chosen neutral facilitator, the mediator. A successful mediation results in an agreement.
Arbitration is an alternative process to court, in which disputes are determined privately by a jointly chosen decision-maker, the arbitrator. The arbitrator’s award is final and binding, subject to rights of appeal.
Mediation/arbitration is a hybrid process. The parties agree in advance that if mediation fails, their outstanding issues will be determined by arbitration. If agreed, the mediator and the arbitrator may be one and the same person.
