Difference between revisions of "Resolving Family Law Problems out of Court"

This chapter provides a brief description of the different alternatives to court, including parenting coordination, and the different ways that settlements and agreements can be recorded. It will also review what can happen when a party has a change of heart after an agreement has been reached.

The fundamental goal shared by all alternatives to the litigation process is arriving at a settlement of the issues in dispute between the parties, particularly those which could have been fought about in court. As you might expect, coming to this sort of agreement requires a certain amount of flexibility and maturity. Most importantly, the parties must understand that neither of them is going to get everything they want. Whatever a person's wish list might be going into negotiations, the end result always represents a compromise and an accommodation of the other party's own goals, wishes and expectations.

For more information about parenting issues after a relationship has ended and how to put the children first in your dispute with the other parent, see the chapter Children > Parenting After Separation. For more information about the emotional issues that come with the end of a long-term relationship and how to keep those issues from hopelessly complicating your dispute, see the chapter Marriage & Divorce > Separating Emotionally.

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation, arbitration and collaborative law are nothing more than structured ways of handling this discussion; they are processes of negotiation.

In negotiation, each person gives a little and takes a little, all in the hope that at the end of the day they'll be able to come to an agreement on all of the issues that have cropped up because of the end of their relationship. If a settlement is reached, the parties almost always put the agreement in some written form.

Mediation is a cooperative negotiation process in which the parties attempt to arrive at a final agreement with the help of a neutral, third-party mediator. A mediator is a person who helps the parties through the process and find compromise.

Some lawyers, like the author, are also "family Law mediators," which means that they have practiced law full-time for at least three years and received training in mediation. Lawyers who are also family law mediators will usually advertise that they are both litigators and mediators. More information about family law mediators is available at the Law Society's website.

Arbitration is a bit like hiring your own personal judge and having a decision made about your case without having to go to court. In the arbitration process, the parties hire a person they both agree will act as their arbitrator, and they agree that the arbitrator will have the authority to impose a resolution upon their dispute.

Arbitration is a lot more formal than mediation, as the process is very much like the court process. Each party presents evidence, makes an argument and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation.

Parenting coordination uses both mediation and arbitration, and is generally only used when parents have reached a final resolution of the issues in dispute, whether this final resolution is reached through negotiation or litigation. Parenting coordination helps parents implement terms of the resolution concerning their children. The parenting coordinator is a family law lawyer or a mental health professional whom the parents hire on a long-term basis, usually for six to twelve months. Parenting coordination is only useful for parents who, despite the formal resolution of their issues, always find themselves fighting about those issues.

More information about parenting coordination is available at the website of the BC Parenting Coordinators Roster Society.

Collaborative law is a mediation process in which the parties and their lawyers sign an agreement not to go to court and work together as a team to find settlement. The team uses divorce coaches to address the emotional and psychological issues arising from parties' separation, and the team may recruit specialists to help with particular subjects, such as children's issues or complicated financial problems, as the need arises.

It is always best to write out the terms of settlement when a settlement as been reached. Writing the agreement out gives everyone a written record of their agreement which they can refer to if there's a dispute about the agreement down the road.

Lawyers and mediators always make a tremendous effort to record a settlement as clearly and comprehensively as possible, and will usually put the settlement in the form of a separation agreement, a memorandum of understanding, minutes of settlement or a consent order.

A separation agreement is a contract entered into after the breakdown of a relationship. The terms of the contract are the product of negotiation between the parties and sometimes their lawyers, and may deal with all or just some of the issues between the parties. Unlike an commercial contract, a separation agreement usually also provides a guide to how the parties will deal with each other after the agreement is executed. A separation agreement can be created to avoid an action in court, and can be signed even after litigation has started.

Separation agreements are discussed more in more detail in the chapter Family Agreements > Separation Agreements.

Minutes of settlement are a record of the settlement of the various claims made in an action, on terms agreed to through negotiation. They are a rough and ready outline of the parties' agreement, an agreement often reached at the end of a long negotiation session or on the steps of the courthouse. Typically, minutes of settlement are little more than an outline of the points agreed to, usually on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are signed by the parties and are their lawyers shortly after they are drawn up. The terms of the minutes are usually used to draft a consent order or lay the foundation for a more detailed separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without the consent order being entered in court.

A memorandum of understanding describes the terms on which a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers:

While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement.

Orders "going by consent" are orders that parties have agreed they will ask the court to make. They are intended to incorporate the terms of an temporary or permanent agreement between the parties, on some or all of the issues, after litigation has started. The terms of the agreement are "made official" by having a judge make an order on the terms of the settlement.

Be cautious when agreeing to a court order. While it is always open to the court to vary an order respecting children and sometimes spousal support if there has been a meaningful and unexpected change in circumstances, the property provisions of a consent order are rarely varied. Make sure you understand and can live with what you've agreed to!

If you have a change of heart after a separation agreement has been signed, you can attempt to negotiate an amendment to the terms of the agreement. Amendments are are further agreement, put into writing and executed just like the original separation agreement. If the other side isn't prepared to agree to the change, you'll have little choice except to go to court and ask the judge to make an order different than the terms of the agreement. Be warned: this will be very difficult unless you can show that there was significant flaw in how the agreement was reached or that there has been a meaningful and unexpected change in circumstances since the agreement was executed. You can't ask the court to make an order different from the agreement just because you've decided you don't like it; there must be an awfully good reason why the court should do anything different than what you agreed to.

The enforcement of orders and agreements is discussed in the chapter Other Family Issues > Enforcing Orders & Agreements.

People sometimes have a change of heart between the time the deal is struck and the time the agreement is put into the form of a consent order or a separation agreement.