Remember, you can continue to negotiate with your spouse to try to reach an agreement on your outstanding issues, even if your divorce is going through court. If you can reach an agreement, you may be able to finalize your divorce without having to go through the formal trial process. Court is often not the best option for resolving a family law dispute because:
- it can take a long time to go through the formal court process
- going to court is expensive (hiring lawyers, missing work, having to pay for childcare while you’re in court)
- it is emotionally draining and stressful
- it’s hard to prepare and present your case
- judges must be neutral, and have to follow rules of evidence
- parties often go away unhappy with some part of the decision (because you may not get everything you asked for!)
→ Most importantly: when you go to court, you’re handing control of some of the most important parts of your life over to a judge who doesn’t know you or your children.
Sometimes, however, court is necessary - for example, where there is high conflict or violence between the parties, or if the matter can’t be resolved any other way.
There are a variety of ways that spouses can try to resolve their outstanding issues. Some of these options are listed here.
Negotiation is a direct discussion of the outstanding issues between spouses in an effort to resolve the issues. Negotiation can take place between the two spouses without outside help, or with assistance from a trusted third party. Negotiation can take place over the kitchen table, at a coffee shop, or in a lawyer’s office.
You don’t have to go to court if you can work out an arrangement by negotiating your own court order.
Mediation involves a neutral third party – called a ‘mediator’ - who helps you and your spouse to communicate and negotiate to resolve your family law problems. A mediator can help you try to reach an agreement about parenting arrangements (custody and access), child support and spousal support, and in some cases, property. The mediator will help you and your spouse identify your needs, clarify issues, and, where possible, reach a workable agreement that fits your particular situation.
Mediation can work in complicated situations – like where you are trying to work out complex financial and property issues, or a detailed parenting schedule. Mediation must always be voluntary, meaning that both spouses must agree that they will participate in mediation for it to happen. This is because mediation will only work if both spouses are really willing to try to resolve their issues without going to court, and are open to negotiating in a respectful way with one another.
When you have a divorce filed with the court, you may have the option of being referred to mediation through the court. Speak to court staff in your area to see if this is available to you. You can also talk to a private mediator.
You usually have to pay a fee to go to mediation. How much you will have to pay depends on things like whether you were referred through court or hire a private mediator, how much the mediator’s individual rates are, and how many mediation sessions you need. Either way, mediation is usually less expensive and more private than going to court.
Some cases may not be appropriate for the mediation process. For example, if there has been an imbalance of power between the parties – like in situations where there has been violence - mediation may not be a good option. Before the actual mediation process takes place, the mediator will meet with each spouse individually to do a ‘pre-mediation.’ The mediator will make sure that the case is appropriate for mediation at this stage.
More information on mediation is available through Family Mediation Nova Scotia and Family Mediation Canada.
Collaborative Family Law (CFL)
Collaborative Family Law is where both spouses have lawyers who are trained in the collaborative process, and they and their lawyers sign an agreement that they will negotiate in good faith and not go to court.
If you cannot reach an agreement through this process and end up having to go to court, the lawyers that were involved must remove themselves from the case. This is because at the beginning of the CFL process, the lawyers would have signed an agreement saying they would not bring the matter to court. If this happens, you and your spouse can hire new lawyers, or represent yourselves for the formal court process (but this is not recommended).
More information about this process is available through the Collaborative Family Law Nova Scotia.