Collaborative Law or Mediation for Separation in Ontario: Which Fits?

When you separate and want to avoid a courtroom, two names come up quickly: mediation and collaborative law. They share a goal, which is settling without a judge deciding for you, but they work differently.

This article compares the two in plain terms so you can talk through the choice with your spouse and a lawyer.

What the law says about trying to settle

In a divorce proceeding, the Divorce Act says that, to the extent that it is appropriate, parties to a proceeding must try to resolve the matters through a family dispute resolution process. If you are separating without divorcing, how this applies depends on your situation, so it is worth confirming with a lawyer. The Act defines this as a process outside court, such as negotiation, mediation and collaborative law.

There is an exception. A legal adviser must encourage family dispute resolution unless the circumstances of the case make it clearly inappropriate, for example where family violence is involved. So neither process is right for every family.

How mediation works

In mediation, the two of you negotiate with help from a neutral mediator. The mediator does not take sides, make decisions or give legal advice, and does not take the place of a lawyer. The mediator screens the parties at intake and throughout to check that both are in an equal negotiating position.

The mediator writes up what you agreed, and Ontario advises that each party get advice from a different lawyer before signing.

Court-connected mediators must have 60 hours of family mediation training and 21 hours of intimate partner violence education or training, including screening for intimate partner violence. Court-connected on-site mediation is free on the day your matter is scheduled in court, while off-site mediation may carry user fees on a scale based on income and number of dependents. Exact rates vary by provider, so ask before you book.

How collaborative law works

Collaborative law is a negotiation process outside court, and the Divorce Act names it as one example of family dispute resolution. How a collaborative process is set up, including who takes part and what you are asked to sign, can vary, so ask for the terms in writing and have a lawyer explain them to you.

Before you sign anything, ask what happens if talks break down, including whether you could keep the same lawyers if the matter later goes to court. A lawyer can explain the specific terms you are offered.

Side by side

After an agreement is signed, a court may set aside a domestic contract or a provision in it on application, including where a party did not understand the nature or consequences of the contract. A party may also file a domestic contract with the clerk of the Ontario Court of Justice or the Family Court so that its support provisions can be enforced.

Which tends to suit which situation

• Mediation may suit you if you can talk reasonably, your issues are fairly clear, and you want a lighter structure. You can still see your own lawyer between sessions.
• Collaborative law may suit you if you want a lawyer beside you throughout, the finances are complicated, or one of you finds direct negotiation hard.
• Neither may suit you if there is family violence, because dispute resolution can be clearly inappropriate in those circumstances. Screening matters, and a lawyer can help you think through other options.

Whichever route you choose, full financial disclosure matters. A court may set aside a domestic contract if a party failed to disclose significant assets.

What to do next

• Think about safety and how well the two of you can communicate.
• List your issues: parenting, support, property, the home.
• Ask about the process agreement and what happens if talks fail.
• Talk to a lawyer about which route fits before you commit.
• Collect your financial documents early.

Family Law Information Centres at family courts give court forms and general information about procedure, along with information about mediation and referrals. Staff give information, not legal advice. If your income is low, you may be able to get legal advice at court from Legal Aid Ontario advice lawyers and duty counsel.

Frequently asked questions