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GUEST COLUMNTHE BETTER AND BEST WAYSOptions now include collaborative law and mediation/arbitrationby TONY KELLERTONY KELLER has practisedcivil litigation and family lawfor over 35 years in theKitchener/Waterloo area. Heis the senior partner ofKeller&Morrison in Waterloo.He was admitted as a memberof the Arbitration andMediation Institute of Ontarioin 1992.Since prehistoric times the concept of battle as amethod of resolving disputes has permeated ourculture. Battle still exists in our judicial system (albeitin a more refined form) – nowhere more painfully thanfamily law disputes.The fracture and eventual destruction of a marriageor long-term common law relationship, especially onewhich has produced children, is tragic. A tsunami offailure, grief, loss, fear and anger swamp the family. Inthe midst of that emotional toxicity, spouses are compelledto resolve urgent financial and parenting issues.Absent an informed consensual written agreement,the only remedy, until recently, was going to court andbattling each other in an expensive, frustrating, cumbersomeand lengthy process. Even then, spousesmight have to spend many thousands of dollars at theend of a multiyear process in a trial which could lastweeks and wreak permanent emotional damage uponthe children and parents.Fortunately, there are now two more dignified andefficient ways of resolving issues without going to court.The first is collaborative law, a process which focuseson a negotiated settlement where the lawyers act ascoaches and problem solvers. It offers an alternative toseparated spouses who cannot reach agreement with-out professional assistance. The shortcomings of thecollaborative law process are that there is no decisionmakerin the event of an impasse and there is no wayto speed the process if one of the spouses engages indeliberate delay tactics.The second and preferred method is mediation/arbitrationor “med/arb”. As the title suggests,mediation/arbitration is a two-stage approach whichpermits the spouses to maintain control of the outcomeduring the first stage (mediation), but whichallows a binding decision to be made during the secondstage (arbitration) if one or more issues cannot beresolved by mediation.Mediation/arbitration begins when the spouses agreeto retain an experienced family law lawyer or retiredjudge as mediator/arbitrator. The mediator/arbitratoressentially wears two hats. During the mediation phase,the mediator assists the parties in an objective, evaluativeand sensitive manner to identify the issues, discussThe division and preservation of the family’s assets, while maximizing the after-tax valueof those assets, is a task best suited to mediation/arbitration.and resolve them creatively without a formal battle. Thefunction of lawyers during mediation is not to arguewith each other or the mediator, but to provide informationand creative solutions to resolve the issues. Thegoal of every mediation is to settle all issues without thenecessity of arbitration and to incorporate the settlementinto a formal separation agreement.If, during a mediation, one of the spouses becomesobstructive or overly confrontational on an issue, themediator can indicate to the spouse that his/her positionis unreasonable. All mediators attempt to assistrecalcitrant spouses to adopt reasonable approachesto resolve issues.The mediation phase continues as long as the partiesagree. If an impasse is reached regarding any issue,either party can trigger an arbitration by indicating thathe or she no longer wishes to participate in a media-28 | w w w . e x c h a n g e m a g a z i n e . c o mFine Clothing forMen & Women– Career to Casual –Clothes you’ll love to wear95 Peel Street, New Hamburg(519) 662-3000STORE HOURS: Tues.-Wed. 9am-6pm; Thurs.-Fri. 9am-8pm; Sat. 9am-5pm – after hours by appointment -