Five benefits of settling your divorce outside of court

In a high-profile divorce case from several years ago, an Ontario couple spent four and a half years — and more than $2 million in legal and expert fees — in litigation before the court awarded the wife $10.6 million in spousal support, equalization payment and the proceeds of a life insurance policy.

When a marriage ends, people tend to adopt one of two mindsets: They either want to settle their divorce as quickly and painlessly as possible or they are primed for an epic battle. Those who are not vindictive usually want the most amicable resolution to salvage whatever decency exists between the former couple, especially when children are involved.

Frequently, the ones who come in with guns blazing, intent on getting their day in court, have fixed ideas about their rights and obligations in divorce, many of which are informed by anger and hurt.

While litigation is sometimes unavoidable, it’s almost always in the parties’ best interests to settle outside of court. It’s also important to note that the family judicial system is designed to help couples avoid court by resolving their differences through good-faith negotiations.

There are countless benefits to avoiding divorce litigation, but for the purposes of this post, I will highlight the top five, based on my more than 34 years of practice as a family law lawyer.

1. Less stress

If you’re in the middle of a divorce, you don’t need me to tell you how stressful the experience is. Even amicable splits are fraught with emotion. But a protracted divorce can exact a heavy toll on the parties’ emotional well-being.

The process can drag on for months — or years — effectively stalling spouses from moving forward with their lives. There’s also an added layer of stress that comes with the uncertainty around what a judge will decide for the family.

By contrast, couples who sort out their issues through mediation or collaborative negotiations usually find the process less stressful. It also helps to set the family up for success going forward by encouraging and enabling them to co-operate in resolving future disputes.

2. Lower legal costs (usually)

Litigation is an expensive process. Clients pay for the time a lawyer spends preparing their case for trial, and if their case is complex and involves expert testimony from business valuators, psychologists, social workers and the like, the expenses can add up quickly.

Most people underestimate the amount of time and effort it takes to prepare for litigation. Drafting court papers, collecting financial disclosure and co-ordinating other parties who may be involved are time-consuming undertakings that add to the cost of a case.

On top of that, the court imposes strict limits on the number of pages that can be included in conference briefs, which means lawyers need to spend time synthesizing the information so that a judge can easily glean the most important facts.

By contrast, a negotiated divorce settlement not only generates the best result for a family, it is often a more cost-effective road to resolution. Data from the Canadian Bar Association shows that settlements achieved through alternative dispute resolution serve clients’ best interests in about 90 per cent of cases, compared to around 30 per cent for litigation.

3. Control over the outcome

Asset division, parenting arrangements, child support and spousal support can all be negotiated through an alternative dispute resolution path, such as mediation, arbitration or collaborative negotiations.

People usually don’t recognize that when they ask a judge to decide the matters in dispute, they lose the ability to reach an agreement that will work best for their family. When you go to court, you’re essentially trusting a stranger to make the most important decisions for your family.

Family court judges are exceedingly busy, processing many cases every day. Each one comes with a small mountain of paperwork they must review to get up to speed on the case. While they do their best to understand the dynamics of your case, it is still just one person’s perception — and they could be getting it wrong.

4. Focus on the children’s best interests

Arguably, the most important reason to avoid a contentious divorce is your children.

Litigation creates a hostile environment that pits parents against each other. It’s easy to get caught up in the drama and forget that your children are also going through the most significant change in their lives.

Experts say that a child’s ability to recover from divorce depends to some degree on how parents handle the separation. When parents negotiate an agreement, it demonstrates to their children that they can co-operate in the midst of chaos, and they will have a much easier time adjusting to the changes that come from the divorce.

5. Faster resolution

The wheels of justice turn slowly, especially in COVID times when the courts are more backlogged than ever. Most clients are shocked to learn that getting to their first court date often takes six to eight months.

And long before a case ever gets to trial, spouses have to attend numerous mandatory settlement conferences in an attempt to help them resolve their dispute.

When negotiation won’t work

Of course, there are situations where a negotiated settlement will be unlikely, if not impossible. When one spouse is intent on getting more than their fair share of assets, is requesting unreasonable parenting arrangements or refuses to negotiate, it can stonewall any attempts to settle.

When one or both spouses have a high-conflict personality, a negotiated settlement can be difficult to achieve without highly skilled professional involvement. These types of cases inevitably involve prolonged court battles.

Spouses who can negotiate some or all the terms in their divorce will be in for a much smoother process than if one is determined to have their day in court from the outset.

If you are facing a separation or divorce and would like to understand your options, call us to schedule a consultation. We would be happy to help you.

Is a mediated divorce the right option for my family?

A mediated separation or divorce can be an effective way for former spouses to resolve their family’s legal issues, but it’s vital that both parties buy into the idea for it to be successful, says Toronto family law lawyer and mediator Gary Gottlieb.

Mediation allows former spouses or common-law partners to settle their differences outside of court, either by working directly with a mediator or with the assistance of counsel. Couples can work out agreements on all relevant issues, such as custody, access, child and spousal support, property division, debt management and the matrimonial homes. The resolutions they generate in mediation will ultimately form part of the separation agreement.

“Many couples opt to formally end their relationship without going through what can often be a time-consuming and expensive litigation process,” Gottlieb says. “Mediation is a great tool that can help them save money and devise a plan tailored to the needs of their family.”

Mediation is designed to help separating couples and families reach agreements without the time, expense and stress of having to go to court,” says Dakota Murphey in a column for Mediate Canada.

“A specially trained mediator has a variety of techniques at his disposal to encourage communication and cooperation between couples, to help them sort out arrangements between them and to enable them to move forward,” she writes.

Legislative changes encourage alternate dispute resolution

The Ontario government is proposing new legislation to make resolving family legal matters easier, faster and more affordable. Bill 207, Moving Ontario Family Law Forward Act, 2020, also includes stronger language that encourages alternative dispute resolution.

“To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Part through an alternative dispute resolution process, such as negotiation, mediation or collaborative law,” the bill states.

Gottlieb supports the idea and says it may help stem the backlog of cases in family law courts around the province.

“Many family lawyers and mediators are already on board with the idea of providing more efficient access to justice for people involved in family legal matters,” he says.

How does mediation differ from court?

In his more than 33 years serving as legal counsel in family law mediations, and cases where he is the mediator, Gottlieb says almost any matter can be mediated as long as there’s no history of domestic violence. Roughly one-third of his clients choose the less adversarial route, which enables them to address issues typically outside the court’s scope.

“In many of my mediated cases, we’ve been able to sort out issues that the courts won’t deal with, such as how grandparents and step-parents will be involved in the children’s lives,” he notes.

Gottlieb says it’s important to understand that mediators are neutral third parties; they do not advocate for either side but rather help facilitate discussion and negotiate an agreement on the issues in dispute.

Benefits of a mediated divorce

Beyond being a faster and more cost-effective alternative to court, Gottlieb says mediation can also reduce the amount of stress associated with ending a marriage or long-term union.

“The parties have more control over the process,” he says. “If you go to court, which is often what happens with high-conflict couples, you have to live with the order the judge imposes.

When both parties are committed to the mediation process, Gottlieb says it’s successful 99 per cent of the time. But if one person doesn’t buy into the idea or views the mediator as a quasi-judge who will lay down the law, it may be doomed to fail, he adds.

“A lot depends on the parties themselves and their desire to reach a compromise. When there’s a sense that one party has not been forthcoming with disclosure or is hiding something, trust equity is lost, and there will be no deal.”

DIY mediation or lawyer-assisted?

Separating couples have two options if they decide to mediate: they can hire a mediator both agree on to help them come up with a plan, or they can each be represented by legal counsel in mediation, Gottlieb explains.

“There are pros and cons to both approaches, and much of it depends on the people involved,” he says. “If the parties are both represented by lawyers who are familiar with and supportive of mediation, they can be very helpful. If emotions are running high, as often happens, counsel can take their clients into a separate breakout room to decompress, so the process stays on track.”

But if one or both lawyers don’t see the value of mediation or aren’t interested in creating a deal, Gottlieb says it will torpedo the negotiation efforts.

Strategies for selecting a mediator

Different mediators have distinctive styles: they can facilitate a conversation between the parties, or they can use a more directive approach, providing their opinions as to what would make the most sense in a particular situation.

“In my view, the more directive the mediator, the better your chances are for a successful mediation,” Gottlieb says. “I have found over the years that litigants who choose mediation rather than litigation are extremely cost-conscious and prefer to commit to the one or two days it takes to complete the mediation process.”

While facilitation is often a more organic process, and from a theoretical perspective, more productive, it will usually take much longer than the parties are prepared to withstand, he adds.

Just like preparing an application for a court-processed divorce, parties will have to produce financial statements and disclosure briefs outlining their interests before the mediation. Unlike court, they will have an opportunity to ask the mediator any questions they might have about what’s required in the paperwork.

“By providing the information to the mediator ahead of time, we can concentrate on the real issues and refocus the dialogue away from emotion to the practicalities of separating,” Gottlieb says.

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