Personal Negotiation
When parties decide to resolve things on their own they have complete control over both the process and the agreement they will make. This can be the quickest and least expensive way to resolve issues. In some situations personal negotiation may not be the best option. This includes cases where there are issues of power and control, abuse or family violence, as well as situations where there are serious mental health issues or substance abuse.
Because the parties reach the agreement on their own, it is particularly important for each party to have their own independent lawyer review the agreement before signing it.
Mediation
Parties can choose to use an independent third person called a mediator to help them reach an agreement. Mediation is not couples counselling or therapy. Mediation focuses on finding a way to resolve issues between the parties. Problems that can be solved through mediation include such things as who, if anyone, will stay in the family home; where the children will live; how the parties and any children will be supported; and how property will be divided.
The parties themselves are still responsible for making decisions about how to settle matters but the mediator may help the parties to find common ground or consider things in a different light. A mediator cannot make an order or force the parties to agree. Mediators will charge a fee for their services, but the associated costs may be less than taking matters through the court system and the parties will have more control over the outcome.
Mediation usually involves direct discussions with the other party so it may not be a useful and effective way of resolving issues when there is family violence or an imbalance of power between the parties. Some types of mediation, for example shuttle mediation, where each party meets separately with the mediator, may be useful for situations where the parties cannot be in the room together. In some cases technology such as video-conferencing can be used for mediation when the parties do not live close enough together to meet regularly in-person.
The parties generally meet with the mediator several times. The first meeting is often used to determine if mediation is a good option for the parties, to discuss how mediation will work and to establish basic rules for future meetings. Depending on the situation, the mediation process can include people other than the parties themselves, such as a new partner or extended family members.
A mediator may help the parties find solutions they had not considered before. The parties discuss the issues and make joint decisions about how to settle them. The mediator can then help them put the decisions down on paper. Parties who are able to reach an agreement through mediation should each have their own lawyer review the agreement before signing it.
A mediator can be a social worker, lawyer, psychologist or other trained professional. If the parties are seeing a lawyer their lawyer may recommend a mediator. Parties may also ask friends for the names of mediators they have used or look in the yellow pages of the phone book. See
Conflict Resolution Saskatchewan for a directory of mediators in Saskatchewan.
Collaborative Law
Collaborative law is a type of negotiation where each party works with their own collaborative lawyer who has been trained to negotiate fair and reasonable settlements. The parties must commit to reaching a settlement through a collaborative process outside of the courts and agree that the lawyers will not represent them in court if no agreement is reached. If, however, the parties reach an agreement, the lawyers will work with them to obtain any required court orders.
The process is client-controlled with lawyers representing each party while guiding them towards reaching a settlement. Parties can decide to involve other professionals such as accountants or psychologists to help with specific issues. Because the parties are working together to reach a settlement that addresses their unique situation, the process can be less time consuming and less costly, although costs will vary depending on the time needed and the other professionals involved.
Because the parties negotiate directly with each other this process may not be appropriate if there is family violence. The collaborative process also requires both parties to fully disclose all their financial information. If there is a strong chance that this will not happen the collaborative approach may not be the best option.
For more information, call Collaborative Lawyers of Saskatchewan toll free at 1.866.347.8545, or visit
Collaborative Lawyers of Saskatchewan.
Negotiation through a Lawyer
Parties who cannot reach an agreement may negotiate an agreement through their lawyers. Negotiation allows parties who are unable to deal directly with each other to compare views with the other side, through a lawyer, in order to arrive at a settlement.
In negotiation each party must discuss with a lawyer the terms they want in an agreement. The two lawyers communicate with one another and lay out their respective clients’ position on matters that need to be resolved. Through discussion, the lawyers look for common ground and examine areas that their clients may be willing to compromise on. Before the lawyers agree to anything, they must check with the party they represent. This process continues until an agreement is reached.
The lawyers can ensure that both parties understand their legal rights and obligations and that the agreement is easy to understand and enforceable. Negotiation through a lawyer is useful if one or both parties are being unrealistic about their legal obligations and rights. It can also be useful if there has been family violence or there are issues of power and control because each party’s lawyer will act as an advocate for that party. It can be more time consuming and expensive than if the parties work out an agreement themselves.
For information on finding a lawyer see
Getting Legal Help.
