Three Ways to Keep Your Divorce Out of Court
Divorces in Alberta often end in court applications and trials. Contrary to popular belief, there are alternatives out there.
Unfortunately, in other jurisdictions different terms are used so there is a lot of confusion about processes that are available in Alberta. Below I will define three processes for you because these are often confused or misunderstood by the clients I see.
The only step of the divorce process where a court is actually required is the signing of the divorce judgment and divorce certificate. This is a simple matter that can be taken care of at the end of any of the processes identified below without either of the spouses actually having to attend court.
Collaborative divorce is a negotiation process where a team assists the spouses to negotiate their own outcome. The team usually consists of two lawyers, a financial expert (where required) and a parenting expert (where kids are involved). One of the defining features of this process is that the lawyers work together and cannot go to court for the spouses. This encourages settlement and allows for a degree of honesty and openness that is otherwise impossible in divorce proceedings.
Mediation is a process where a neutral third party guides the spouses to a settlement. It is non-binding and optional until an agreement is reached. Often people confuse this with arbitration (see below) by talking about “binding mediation”. This is not a term used in Alberta Divorce Law.
The spouses may attend mediation with lawyers or without lawyers but most mediators will require them at least to seek legal advice before the mediation starts.
Arbitration is a process where a third party is hired to make a decision for the spouses. Once it is agreed to, it is binding and attendance is required. The arbitrator is given similar powers to a Judge hearing the divorce in court. In Alberta, arbitration is defined in the Arbitration Act as binding. However, people sometimes talk about “non-binding arbitration” which is not something we see in Alberta Divorce Law. What they are referring to is more likely mediation.
There are many subtleties and variations on these processes. In order to better understand which of these alternatives (if any) are right for your case, you should contact Tyler Fric, Collaborative Lawyer in Calgary.