Henderson Heinrichs LLP

To Mediate, or to Litigate: That is the Question.

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: March 3, 2015

Categorized: Dispute Resolution, Mediation.

As family lawyers we are intimately aware of the many stresses that are associated with the breakdown of a relationship. There are often many financial and emotional pressures that our clients are faced with as a result of the breakdown of marriage or relationship. Every individual comes to us with a unique set of circumstances, concerns, needs and end goals. As such, we work with client’s to provide a tailored approach to support and provide practical solutions to their individual set of circumstances.

Lawyers are able to use a wide variety of conflict resolution methods to resolve a family dispute. Often family disputes will require a coordination of a number of different techniques and processes to achieve an effective solution. This is largely due to the wide variety of different legal issues that arise from the breakdown of a relationship. For example, there is the coordination of the division of family property such as the matrimonial home, RRSPs, pensions, investments, business interests etc.  There are also support issues that need to be negotiated around “Child Support” and “Spousal Support”, and the management of parenting time and parenting responsibilities when parties have children together.

In addition to the management of the legal issues themselves arising from the breakdown of a relationship, family lawyers must also take into account the parties’ unique personalities, emotions, history and circumstances underlying the legal conflict.

Below is a high level summary of some of the different processes that you can explore with your lawyer to help you reach the right resolution for you.

Kitchen Table Negotiation

The kitchen table approach is used to refer to the direct negotiation between the parties. This is the ideal approach to use when parties are amicable with minimal conflict. However, this process is often unsuccessful when there are heightened emotions and a breakdown of communication between the parties. In addition, there can often be a power imbalance that directly impacts the ability of the parties to reach a fair and reasonable resolution.

Professional Negotiation

A lawyer can help to negotiate on your behalf. This is perhaps the most common and cost- effective way to reach a resolution. When both parties retain a lawyer, the lawyers can facilitate reaching a resolution by navigating the legal principles and de-escalating a conflict by providing greater objectivity in the negotiations on behalf of their clients.

The ultimate success of a negotiation relies on the parties’ commitment to reach a resolution. Without the court’s authority to make an order, parties can only reach a resolution on the basis of consent. So if there is one individual who is unwilling to cooperate in the process or is being highly unreasonable, proceeding with negotiation can end up having greater legal costs to a client.

 Collaborative Law

Collaborative law is an extension of professional negotiation. It can be a valuable method of reaching a long term resolution between parties when there are young children involved. However, there must be a genuine desire between the parties to be honest, disclose necessary information to reach a resolution, and not go to court. This process is only as successful as the parties are committed to reach a final agreement.

Mediation

The parties and lawyers work with a neutral mediator to reach a resolution of the issues. A mediator is typically not used as an adjudicator to make the decisions on behalf of the parties, but rather used to facilitate the parties’ communications in order for the parties to make decisions about the terms of their agreement.

The lawyers in our office are able to provide you with mediation services. However, it is important to note that if you are calling to enquire about our mediation services, we must be notified prior to your initial consultation in order to meet with both parties’ and  avoid a conflict of interest.

Litigation

Litigation is most effective in highly contested cases where the parties are unable to agree to terms of settlement and require the courts assistance to adjudicate an issue. Within the process of litigation there are a wide variety of dispute resolution mechanisms that the court’s use to help facilitate a resolution. Often the process of starting an action in litigation can be used to encourage parties’ to settle matters out of courts.

For further information on the right process to resolve your legal dispute, contact one of the family lawyers at our office for a free 30 minute initial consultation.

Author: Angie Riaño

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