Collaborative Divorce vs Mediation for Separating Couples in Ontario

Many separating couples want to settle the big questions without a courtroom fight. Ontario recognizes several routes, and two of the best known are mediation and collaborative family law. They sound similar but they work quite differently.

This article explains who is in the room, what happens if talks break down, what the process can cost and when another route may suit you better. It is general information, not advice on your situation.

The options before you start a case

Ontario lists these options for resolving family issues before starting a case: negotiation, mediation, collaborative family law, arbitration and court. In arbitration, a neutral arbitrator makes a final decision the court can enforce. In court, a judge decides and you must follow the order.

For people who are divorcing, the Divorce Act says that, where appropriate, the parties shall try to resolve the matters that may be the subject of an order through a family dispute resolution process. A lawyer acting in a divorce proceeding must encourage you to try family dispute resolution unless it is clearly inappropriate, and must tell you about family justice services.

How mediation 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. Mediation requires you to be willing to work toward a solution, feel safe meeting the other person, and be able to discuss your needs and listen to the other person's concerns.

Cost depends on where you go. On-site mediation is free on the day your case is scheduled for court. Off-site mediation has a sliding-scale fee based on income and number of dependents, and an example given is that someone earning under $60,000 a year pays $5 to $105 per hour. Low-income people may qualify for free mediation through Legal Aid Ontario.

Family Law Information Centres at courthouses can refer you to court-connected mediation, and their coordinators do not give legal advice.

How collaborative family law works

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 describes the collaborative agreement as a commitment not to go to court while negotiating cooperatively.

The key risk is the "what if it fails" question. If you do not reach an agreement you can still go to court, but you will need to hire a different lawyer. Neither collaborative lawyer can represent you in the court process if the approach fails. That can mean extra time and cost, so it is worth thinking about before you sign on.

Side by side

Safety, power imbalance and high conflict

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. For example, a controlling parent can prevent the other from speaking up in a joint session.

• In court-connected mediation, the mediator meets each person separately at intake to check that you are in an equal negotiating position, and screening continues throughout.
• Court-connected mediators must have at least 60 hours of family mediation training and 21 hours of intimate partner violence education.
• In shuttle mediation, the mediator speaks to each person separately and you do not need to be in the same room.
• Before family arbitration begins, both people are interviewed separately by a professional trained to recognize signs of domestic violence and significant power imbalances.

If safety is a concern, tell any professional you meet at the start and consider getting legal advice before agreeing to any joint process. Whatever route you choose, the Divorce Act requires each party to protect any child of the marriage from conflict arising from the proceeding, to the best of their ability.

What to do next

• Ask yourself honestly whether you feel safe and able to speak up with the other person.
• Decide whether you want a neutral person helping both of you, or a lawyer on your own side at the table.
• Ask any collaborative lawyer what happens, and what it costs, if talks fail.
• Ask a courthouse Family Law Information Centre about court-connected mediation.
• Get your own legal advice before you sign any agreement.

To find a lawyer, the Law Society Referral Service connects you with a lawyer or paralegal who offers an initial meeting of up to 30 minutes at no cost (1-855-947-5255). The Law Society's Lawyer and Paralegal Directory can be searched by location, language or area of law, including Family/Matrimonial Law.

Frequently asked questions