Com­mon Paths To Re­solv­ing Your Divorce

North Toronto Post - - ASK THE EXPERT -

There are 3 com­mons paths that any divorce case can take: court, me­di­a­tion, and ar­bi­tra­tion. Each has its own ad­van­tages and dis­ad­van­tages.

Court con­sists of at­tend­ing be­fore a judge to re­solve dis­putes by way of con­fer­ences and mo­tions. If re­quired, a trial is held to fi­nal­ize mat­ters. Its ad­van­tages in­clude that it is a struc­tured pro­cess, and that judges have vast and sig­nif­i­cant author­ity to make a va­ri­ety of or­ders on dif­fer­ent is­sues.

Some of the dis­ad­van­tages to court in­clude the le­gal fees, the wait times (which vary by ju­ris­dic­tion) and that some­times, lit­i­gat­ing in court can es­ca­late con­flict.

Me­di­a­tion con­sists of meet­ing with a neu­tral third party me­di­a­tor who as­sists the par­ties in mov­ing their ne­go­ti­a­tions for­ward. If a set­tle­ment is reached, the par­ties sign an agree­ment mak­ing their set­tle­ment bind­ing. Its ad­van­tages can in­clude lower costs as com­pared to lit­i­ga­tion, and pro­vid­ing the par­ties with an op­por­tu­nity to con­struct cre­ative and unique set­tle­ments that may not be oth­er­wise avail­able by way of lit­i­ga­tion

A dis­ad­van­tage to me­di­a­tion is that a set­tle­ment may not reached be­cause the me­di­a­tor can­not im­pose any de­ci­sions on the par­ties. Also, be­cause it is a vol­un­tary pro­cess (i.e. both par­ties must agree to par­tic­i­pate), one party may ter­mi­nate the me­di­a­tion at any time.

Ar­bi­tra­tion con­sists of the par­ties hir­ing a neu­tral third party by way of con­tract as a pri­vate judge. It re­quires par­ties to waive their rights to lit­i­gate the is­sues sub­mit­ted to ar­bi­tra­tion in court. Like me­di­a­tion, both par­ties have to agree to par­tic­i­pate in the pro­cess. Un­like me­di­a­tion how­ever, a party can­not uni­lat­er­ally ter­mi­nate the ar­bi­tra­tion pro­cess. Its ad­van­tages in­clude pri­vacy (as op­posed to court which is a pub­lic fo­rum), the abil­ity to choose an ar­bi­tra­tor (par­ties can­not choose a judge) and that the tim­ing/sched­ul­ing is much more flex­i­ble (an ar­bi­tra­tor may be avail­able to deal with par­ties af­ter­hours and more ex­pe­di­tiously than a judge).

A dis­ad­van­tage to ar­bi­tra­tion is that it is may be more costly be­cause the par­ties have to pay for their lawyer and the ar­bi­tra­tor.

Be­fore choos­ing a path to divorce, it’s pru­dent to speak with an ex­pe­ri­enced fam­ily law lawyer to de­ter­mine what the right strat­egy is in your case to achieve your de­sired ob­jec­tive.

BIO Ch­eryl Gold­hart is a certified spe­cial­ist in Fam­ily Law with over 30 years of ex­pe­ri­ence prac­tic­ing ex­clu­sively in the field. She spe­cial­izes in com­plex, high con­flict and high net worth cases. She is an ac­com­plished lawyer, OAFM ac­cred­ited fam­ily law me­di­a­tor and a certified fam­ily law ar­bi­tra­tor by the ADR In­sti­tute of On­tario. Ch­eryl Gold­hart – Ex­pert Fam­ily Law Lawyer, Me­di­a­tor and Ar­bi­tra­tor

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