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Family law alternatives to litigation — part 1

In part one of a two-part series on litigation alternatives, Toronto family lawyer Julia Tremain explores the benefits of negotiated settlements.

Divorcing couples who avoid court can save time, money and stress, Toronto family lawyer Julia Tremain tells AdvocateDaily.com.

Tremain, partner with Waddell Phillips Professional Corporation, takes pride in her settlement-oriented approach to legal matters and says her clients reap the rewards of choosing alternative dispute resolution methods, such as arbitration, mediation, collaborative family law, or simply via a negotiated settlement achieved with the help of counsel.

“It generally will cost you less to go any of these routes than through the litigation process,” she says. “That’s one of the bigger selling points.”

Tremain says the cost of a particular matter will depend on the surrounding circumstances, as well as the method of dispute resolution selected.

But even if the parties have to chip in to cover added expenses not relevant in court, such as for a mediator or arbitrator, she says the price is dwarfed by the savings.

“The costs are shared between the parties, but in the long run, it’s still less than it would be to go to court,” Tremain says. “It can take a few months to negotiate a settlement, which compares favourably with the years it can take to get before a trial judge after you’ve been through all the conferences and other parts of the process.”

In addition, Tremain says parties are attracted by the flexibility of non-court routes to settlement, which extends beyond the selection of a neutral third-party if one is required. The parties can also design a process that suits them, and dispense with unnecessary formalities, she says. 

“With negotiation, you have much more control over the outcome. There’s obviously going to be some give and take, but the parties know their own lives, kids, finances and schedules better than anyone,” Tremain explains. “Otherwise, you’re putting everything in the hands of a judge who is essentially a stranger to the parties, and you don’t know what you’ll get.”

For example, Tremain says a judge’s final decision may dictate a summer schedule for parenting time that does not work with either parent’s preferences.

“If one parent has a cottage and wants to take a few long weekends, and the other wants to go travelling the world, that’s not going to work at all if the judge has ordered that the schedule stays the same as the rest of the year,  save for an extra week here and there with each parent,” Tremain says. “That’s something that could have been negotiated, but you lose control when the judge decides.”  

Although clients are generally relying on the co-operation of the opposing party, Tremain says many people understand that it’s better for everyone if they can avoid court, especially if they are represented by counsel.

“Sometimes you can tell in a high-conflict case that they’re not going to agree to anything, and court is the only option,” she says. “But ideally, you will work to see if a settlement can be reached. Even if you can only come to a partial agreement, that is helpful because it narrows the issues, and you can leave the rest to be sorted out by the court.”

Stay tuned for part two, where Tremain will look more closely at the various options for parties involved in family disputes.

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