Mediation, Arbitration or Collaborative Divorce: Which Fits?

If you want to avoid a full court fight, you have more than one choice. Mediation, arbitration and collaborative divorce are all ways to settle a separation outside a courtroom, but they work very differently. In particular, they differ in who makes the final decision.

This article compares them side by side, and also against court, so you can see which fits your situation. It is general information; the right choice depends on your facts, your safety, and how well you and your spouse can work together.

The options in one table

Whichever route you choose, a divorce itself comes from a court. The Divorce Act lets a court grant a divorce when the marriage has broken down, shown for example by living separate and apart for at least one year immediately before the determination.

Mediation: you decide

In mediation, a neutral person helps you and your spouse talk and look for solutions, and you keep control of the outcome. Ontario courthouses offer free mediation on the court date for parenting, support and property, and low-cost off-site mediation is on a sliding scale based on income and number of dependents.

It tends to suit couples who can communicate, even with difficulty, and who are willing to share full financial information. If there is a large power imbalance or a safety concern, mediation may not be the right fit. A lawyer can help you assess that.

Arbitration: a private decision-maker

Arbitration is closer to court than to mediation, because the arbitrator makes the decision. Ontario has specific safeguards. Each party must get independent legal advice from a lawyer before arbitration starts, and awards cannot be enforced in court unless both sides received legal advice. Each lawyer gives a certificate, which must be attached to the arbitration agreement if you go to court.

• Limits: arbitrators cannot grant a divorce or annul a marriage.
• Children: arbitrators must decide children's matters in the child's best interests under s. 24 of the Children's Law Reform Act.
• Religious principles: awards based on religious principles are not valid family arbitration awards, and a faith-based process is enforceable only if it follows Ontario law and the arbitrator is trained.
• Costs: arbitrators may order one party to pay part of the other's costs.
• Enforcement: awards are filed for enforcement by Form 32.1, or Form 8 if no case has started, or by motion in an existing case.

Appeals are tightly timed. Leave to appeal must be sought within 15 days of the award, and a set-aside application (Form 8) must start within 30 days. A family arbitration agreement may provide for appeals and limit them to questions of law, fact, or mixed fact and law. Because these deadlines are short, read the agreement carefully with a lawyer before signing it.

Collaborative divorce and court

Collaborative divorce is another route some people consider. The specific rules, commitments and what happens if talks fail depend on the process and the agreement you sign, so ask the lawyer to explain these before you start.

Court is the fallback for any option. In a court case, the respondent must file an answer 30 days after service (60 days if outside Canada and the United States). A case conference is scheduled if an answer has been filed. Settlement conferences aim to explore settlement, narrow issues and ensure disclosure, and a trial management conference deals with how a trial will proceed.

Court also carries cost risks. Rule 24(1) creates a presumption that a successful party gets costs. A party who makes an offer to settle at least seven days before trial that is not accepted, and who gets a result as favourable or better, can get full recovery costs. Filing an application is $214.00 and placing an application on the list for hearing is $445.00, plus the federal $10 fee if there is a divorce claim. Fees can change, so confirm the current amounts before you file.

Choosing and next steps

Questions that help you choose:

• Can we talk about money and children without constant conflict?
• Do I want a decision made for me, or do I want to keep control of the result?
• Do I feel safe and able to speak up in a joint process?
• Has each side shared complete financial information? Full disclosure is the most basic obligation in family law.
• What is each option likely to cost, and who pays for it?
• Is there a deadline? A property claim must go to court within six years of separation or two years after the divorce is final, whichever comes first.

Mixed approaches are possible. Many people mediate first, then use a lawyer or the court for anything left over. Talk to a family lawyer before you sign any process agreement, since the choice can affect your rights and deadlines.

Frequently asked questions