Collaborative Practice or Mediation for Separation in Ontario

If you and your partner are separating and want to avoid court, you will likely hear about two options: mediation and collaborative practice. They sound similar, but the structure, the role of lawyers and the risks if things break down are quite different.

This article compares them in plain terms so you can see which might suit your dispute. It is general information, and a lawyer can help you weigh them against your own circumstances.

How each approach works

Ontario describes mediation as a voluntary process in which a trained, neutral third party helps the two people reach an agreement. The mediator does not give legal advice or make decisions.

In collaborative family law, you, the other person and your own lawyers must agree not to go to court. Unlike a mediator, each lawyer represents one side. The Superior Court's family guide describes the agreement as a commitment not to go to court while negotiating cooperatively.

Both sit among the options Ontario lists for resolving family issues before starting a case, alongside negotiation, arbitration and court.

Side-by-side comparison

The biggest practical difference is the risk if talks break down. In collaborative practice, you lose your lawyers and must start again with new ones. That can add time and cost, and it is worth considering before you commit.

Which tends to suit which dispute

Mediation may suit you if both of you can discuss your needs and listen to the other person's concerns, you feel safe meeting, and you are willing to work toward a solution. Collaborative practice may appeal if you want legal advice in the room and a firm commitment to stay out of court.

• Mediation may suit you if you want a neutral helper and are comfortable getting legal advice separately.
• Collaborative practice may suit you if you want your own lawyer at the table throughout the negotiation.
• Neither may suit you if one of you will not negotiate in good faith.
• If you expect to need a judge's decision, court or arbitration may be more realistic.

Arbitration is a different step again. A neutral arbitrator makes a final decision that the court can enforce.

Safety, power imbalance and legal duties

Ontario's guidance says mediation may not be appropriate where there is violence or abuse in the family relationships, and that going to court may then be the better option. Justice Canada says some dispute resolution processes may not be appropriate in cases of high conflict, power imbalance or family violence.

Having lawyers on each side does not remove those concerns, so raise them early with whoever you consult. Court-connected mediation screens at intake and throughout, and before family arbitration begins, both people are interviewed separately by a professional trained to recognize signs of domestic violence and significant power imbalances.

Under the Divorce Act, a lawyer acting in a proceeding must encourage the client to try to resolve matters through family dispute resolution unless clearly inappropriate, and must inform them of family justice services. Each party must also, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

What to do next

• List what must be settled: parenting, support, property, the home.
• Ask yourself whether you can safely negotiate with the other person.
• Ask any collaborative lawyer, in writing, what happens to the lawyers' role if talks fail.
• Ask any mediator about training and how they screen for safety.
• Get independent legal advice before you sign any agreement.
• If you cannot afford a lawyer, ask a Family Law Information Centre about court-connected mediation referrals.

Frequently asked questions