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Resolving Family Law Problems out of Court

2019-06-29T00:27:06Z

Catherine Brink:

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|Related = [[Collaborative Process]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Process|collaborative process]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching a settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes, and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty, or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

This change in the ''Family Law Act'' has laid the groundwork for changing the how families interact with the court system. A pilot project launched in May 2019 at the Victoria Provincial Court Registry encourages parties to resolve matters by agreement. The [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution & Case Management Model] provides family case management earlier in the court process, and refers appropriate parties to either mediation or the collaborative process before appearing in court.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section, Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to both address the emotional and psychological issues related to the separation and provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are ''collaborative practice groups'' all over British Columbia. These groups consist of legal professionals whose main focus is using the collaborative process to help their clients. More information about the collaborative process is discussed in this chapter's section on [[Collaborative Process]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction on how to start the collaborative process, see [[How Do I Start a Collaborative Process with My Spouse?]] located in the ''How Do I?'' part of this resource.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find a settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a ''separation agreement'', in ''minutes of settlement'', or in a ''consent order'', depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements for family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction on how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section, Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation, see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and the collaborative process, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements for family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction on how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section, Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached on particular issues. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements for parenting coordinators is set out in the [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Law Society Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]]. It's located in the ''How Do I?'' part of this resource, within the section, Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator, or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200–$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes — thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] was ever an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution, but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section, [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change, but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching a settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d4 Law Society Rules], Part 3, Division 4

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019
}}

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How Do I Start Mediation with My Spouse?

2019-05-26T05:07:57Z

Catherine Brink: /* Pick the right moment */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! According to a recent Canadian [http://www.crilf.ca/Documents/Cost_of_Dispute_Resolution_-_Mar_2018.pdf study], the average lawyer’s bill for a person to resolve their dispute through litigation was $12,395 (for low-conflict cases) and $54,390 (for high-conflict cases).

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

It can also be helpful to give them some resources – like sending them the link to the [[mediation]] section of this website, or sending them [https://mylawbc.com/graphic/mediation.php My Law BC’s] handy infographic about mediation.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers. You can also find a list of some family law mediators at [https://www.mediatebc.com/find-a-mediator/family-roster Mediate BC ].

==For more information==

You can find out more about using [[mediation]] in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

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Resolving Family Law Problems out of Court

2019-05-26T05:04:16Z

Catherine Brink: /* The Family Law Act and out-of-court options */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

This change in the ''Family Law Act'' has laid the groundwork for changing the how families interact with the court system. A pilot project launched in May 2019 at the Victoria Provincial Court Registry encourages parties to resolve matters by agreement. The [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution & Case Management Model] provides family case management earlier in the court process, and refers appropriate parties to either mediation or the collaborative process before appearing in court.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d4 Law Society Rules], Part 3, Division 4

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-26T05:02:27Z

Catherine Brink: /* The Family Law Act and out-of-court options */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

This change in the ''Family Law Act'' has laid the groundwork for changing the how families interact with the court system. A pilot project was launched in May 2019 at the Victoria Provincial Court Registry that encourages parties to resolve matters by agreement. The [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution & Case Management Model] provides family case management earlier in the court process, and referring appropriate parties to either mediation or the collaborative process before appearing in court.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d4 Law Society Rules], Part 3, Division 4

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019
}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2019-05-26T04:50:53Z

Catherine Brink: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[https://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an out-of-court option or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs (as applicable) have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers (if attending) and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to share their thoughts on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, help the parties express their emotions in a productive way when things get heated, and keep everyone focused on their interests and the law rather than their grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will sometimes prepare a list describing how each issue has been resolved, called ''minutes of settlement'', at the mediation session itself. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make. Often a mediator who is also a lawyer will prepare the separation agreement.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement (if those were prepared) can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests (your underlying needs) rather than on positions (specific outcomes), and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a settlement you later regret.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for emotions to come up. Try to express them in a productive way so that it can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

===Family justice counsellors===

Mediation is available at no charge from [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] through those BC Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2019-05-26T04:44:37Z

Catherine Brink: /* Formalizing the settlement */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[https://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an out-of-court option or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs (as applicable) have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers (if attending) and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to share their thoughts on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, help the parties express their emotions in a productive way when things get heated, and keep everyone focused on their interests and the law rather than their grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will sometimes prepare a list describing how each issue has been resolved, called ''minutes of settlement'', at the mediation session itself. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make. Often a mediator who is also a lawyer will prepare the separation agreement.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement (if those were prepared) can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests (your underlying needs) rather than on positions (specific outcomes), and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a settlement you later regret.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for emotions to come up. Try to express them in a productive way so that it can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

===Family justice counsellors===

Mediation is available at no charge from [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] through those BC Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2019-05-26T04:42:16Z

Catherine Brink: /* Mediating the dispute */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[https://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an out-of-court option or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs (as applicable) have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers (if attending) and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to share their thoughts on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, help the parties express their emotions in a productive way when things get heated, and keep everyone focused on their interests and the law rather than their grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will sometimes prepare a list describing how each issue has been resolved, called ''minutes of settlement'', at the mediation session itself. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests (your underlying needs) rather than on positions (specific outcomes), and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a settlement you later regret.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for emotions to come up. Try to express them in a productive way so that it can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

===Family justice counsellors===

Mediation is available at no charge from [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] through those BC Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2019-05-26T04:41:27Z

Catherine Brink: /* Mediating the dispute */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[https://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an out-of-court option or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs (as applicable) have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers (if attending) and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to share their thoughts on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, help the parties express their emotions in a productive way when things get heated, and keep everyone focused on their interests and the law rather than their grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will sometimes prepare a list describing how each issue has been resolved, called ''minutes of settlement'' at the mediation session itself. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests (your underlying needs) rather than on positions (specific outcomes), and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a settlement you later regret.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for emotions to come up. Try to express them in a productive way so that it can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

===Family justice counsellors===

Mediation is available at no charge from [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] through those BC Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2019-05-26T04:35:49Z

Catherine Brink: /* Tips for successful mediation */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[https://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an out-of-court option or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focused on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved, called ''minutes of settlement''. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests (your underlying needs) rather than on positions (specific outcomes), and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a settlement you later regret.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for emotions to come up. Try to express them in a productive way so that it can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

===Family justice counsellors===

Mediation is available at no charge from [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] through those BC Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2019-05-26T04:34:18Z

Catherine Brink: /* Things to do */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[https://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an out-of-court option or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focused on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved, called ''minutes of settlement''. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests rather than on positions, and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a settlement you later regret.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for emotions to come up. Try to express them in a productive way so that it can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

===Family justice counsellors===

Mediation is available at no charge from [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] through those BC Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Family Law Mediation

2019-05-26T04:24:43Z

Catherine Brink: /* Things not to do */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
| resourcetype = an answer to the question
| link = "[https://www.clicklaw.bc.ca/question/commonquestion/1121 What can mediation help me with?]"
}}{{LSSbadge
|resourcetype = more information about
|link = [http://www.familylaw.lss.bc.ca/help/who_Mediators.php Mediators]
}}Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the [http://www.lawsociety.bc.ca Law Society of British Columbia].

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

==Introduction==

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlement of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an out-of-court option or as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has started, a settlement can be recorded as either a ''separation agreement'' or as an order that the parties agree the court will make, called a ''consent order''. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

==The mediation process==

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC], formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

===Getting organized===

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

===Exchanging information===
{{LSSbadge
|resourcetype = guides on preparing Financial Statements
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howtofillfinanstate_sc.php for Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToFillFinanState_PC.php Provincial Court]
}}The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

#income tax returns,
#paystubs or other proof of income,
#property assessments or appraisals, and,
#corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faith.

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

===Exchanging briefs===

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

===Mediating the dispute===

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focused on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved, called ''minutes of settlement''. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

===Formalizing the settlement===

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b S.A.A. v. P.W.J.A.]'', 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

==Tips for successful mediation==

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests rather than on positions, and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

===Things to do===

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal.

* Be honest. Trust is essential to the mediation process.
* Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
* Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
* Dress comfortably and be prompt.
* If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings.
* Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
* Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

===Things not to do===

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

*Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for emotions to come up. Try to express them in a productive way so that it can actually move you forward rather than keep you stuck.
* Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
* Don't raise your voice or make comments that are hurtful.
* Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
* Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
* Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
* Don't make personal attacks or threats.
* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

==Government mediation services==

===Family justice counsellors===

Mediation is available at no charge from [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors] through those BC Provincial Court registries that are designated as [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]. Family justice counsellors are fully trained mediators, certified by [http://www.fmc.ca/ Family Mediation Canada], who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres].

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://www.canlii.org/en/bc/laws/regu/b-c-reg-347-2012/latest/b-c-reg-347-2012.html#sec4subsec1 Family Law Act Regulation]
* [http://canlii.ca/t/85bd Notice to Mediate Regulation]

===Links===

* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Provincial Court family justice counsellors]
* [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres]



{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Collaborative Negotiation

2019-05-26T04:16:00Z

Catherine Brink: /* Next steps in the collaborative process */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = more resources like this website from the BC Ministry of Justice on
|link = [https://www.clicklaw.bc.ca/resource/1191 Collaborative Law]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
}}In the collaborative process, the parties and their lawyers work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship. The parties work with counsellors and consult experts such as child specialists and financial specialists as the need arises. The collaborative process is meant to address both the legal and the emotional consequences of the breakdown of a relationship.

This section provides a provides a brief introduction to the collaborative process, a step-by-step overview of what happens, and resources for learning more and getting started.

==Introduction==

The collaborative process is a non-adversarial and voluntary process where each party retains a collaboratively trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues arising from separation but also the emotional issues. The emotional issues of separation can often be an impediment to moving forward efficiently with the legal issues. Divorce coaches (counsellors trained in the collaborative process) often work with the couple to manage the emotions typically associated with separation and finalize a parenting plan that best meets the needs of the children. A financial neutral (also trained in the collaborative process) can assist in reviewing all financial options for the couple. If a child’s voice needs to be heard a child specialist can be retained. This may sound like many professionals however in the collaborative process we build the team to suit the needs of the couple and family. This team approach is more specialized and is often a cost-effective way to deal with separation (rather than just leaving it all to the lawyers).

The goal of the collaborative process is to assist the couple in reaching a reasonable settlement that restructures the family in the most positive manner going forward—recognizing that families continue and need to flourish despite separation. Parents need to be able to continue to co-parent effectively after separation.

==How do I start in the collaborative process?==

Because it is a voluntary process, both you and your spouse must agree to proceed in this process. Most collaborative professionals believe that it is most often a more cost-effective and timely process than litigation and consider it to be a more holistic approach to preserving families going through separation.

Once you and your spouse agree to use the collaborative process, each of you must retain a collaboratively trained lawyer. Sometimes the process starts when the couple meets with a divorce coach first and then collaborative lawyers are brought in.

===Finding a collaborative professional===

The first step in the process is to find and meet with a collaborative lawyer or divorce coach. To find collaborative lawyers and divorce coaches go to these websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

===Signing the participation agreement===

The collaborative process starts when the parties and their collaborative lawyers sign a Participation Agreement. That agreement provides that:

* each party will not commence a court action while in the process;
* each party will make full financial disclosure;
* all communications are confidential until a written separation agreement is signed;
* neither of the collaborative lawyers can represent the parties in subsequent contested court proceedings;
* a lawyer must terminate the process if his or her client refuses to provide the financial disclosure requested; and
* the parties will make best efforts to communicate in a respectful manner.

==Next steps in the collaborative process==

The majority of the work in the collaborative process takes place in meetings with the collaborative professionals and the couple. The professionals strive to identify the needs and interests of each spouse, and together with the spouses, discuss options for settlement and seek resolution of the issues. Typically the couple is very involved in the discussions and retains control over the process and the outcome. As needed, the divorce coaches and the financial neutral participate in these meetings.

===Financial disclosure===

As in any process used to resolve matters arising from separation, financial disclosure is essential. The collaborative lawyers seeks full disclosure of all documents and information relevant to the issues between the spouses. Relevant documents often include:

*statements for bank accounts, retirement savings accounts, investment accounts and all other financial assets,
*current statements for debts including loans, mortgages and credit cards,
*income tax returns,
*corporate financial statements and corporate tax returns, and
*confirmation of income.

The spouses produce their documents and information to the collaborative team on the understanding that discussions and negotiations throughout the process will remain private and confidential amongst the collaborative team.

===Exploring options for settlement===

Once financial disclosure has been made, the spouses and the collaborative lawyers (sometimes a financial neutral is involved) begin exploring options for settlement while maintaining confidentiality throughout. If necessary we obtain an opinion with respect to the current market value of real estate, shares in a business or other assets. In the collaborative process a joint retainer for one opinion is typically sought to begin the discussions.

Discussions continue until the spouses reach a resolution that meets some of the highest needs of each spouse. Because settlement discussions are confidential, brainstorming options for settlement can be expansive. Settlements can and often are creative, depending on the needs of each spouse.

You may want to have a look at [[Family Law Mediation#Tips for successful mediation|Tips for successful mediation]] in the section on [[Family Law Mediation]] in this chapter. It has information about communication skills that can be helpful during the negotiation process.

===Parenting plan===

When there are children, the parents will often work with the divorce coaches to resolve a parenting plan. The parents meet with the divorce coaches to create and finalize the parenting plan focusing on the best interests of the children. If needed, a child specialist may be involved to meet with the child or children to bring back to the parents and the coaches the voice of the child or children. While the coaches are working with the parents to finalize a parenting plan they can often help the parents to deal with any emotional issues that arise and equip the parents to co-parent in a more effective way going forward.

===Reaching an agreement===

The collaborative lawyers and coaches strive to assist the parties to reach a durable agreement (one that meets some of each of their highest needs) in a timely manner and without the time pressures of court. The collaborative lawyers will confirm the terms of the settlement reached in a separation agreement and attach to that agreement the parenting plan. The collaborative process ends when the separation agreement is finalized.

Read the [[Separation Agreements]] section in the [[Family Agreements]] chapter for a discussion about separation agreements and their effect.

==What if a resolution is not reached in the collaborative process?==

Approximately 92% to 95% of all collaborative matters started result in a resolution (a separation agreement). So it isn’t often that a resolution is not reached. However, if that is the case, the parties must retain new lawyers and seek resolution in another process. All discussions and negotiations in the collaborative process are confidential and cannot be used in any way by a spouse in subsequent court proceedings. Despite this, there typically is a lot of learning from the collaborative process that is useful going forward.

==Collaborative Divorce Pro Bono Program==

The BC Collaborative Roster Society has designed and runs a pro bono program for collaborative divorce. This is a program that provides a collaborative team and the collaborative process to a couple that meets the eligibility criteria to resolve their separation. For more information about eligibility and to apply to the pro bono, see the [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''

===Links===
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
* [http://www.nocourt.ca Collaborative Law Group of Nelson]
* [http://nocourt.net/ Collaborative Association in Metro Vancouver]

===Downloads===

A sample collaborative process participation agreement is available for download: [[Media:Participation Agreement sample.pdf | Participation Agreement (Sample) PDF]]

In the sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers.

This sample document is just a generic reference. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation. It may not resemble the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only. Copies of the most up to date participation agreements used by collaborative process professionals in BC can be found on the [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.

{{REVIEWED | reviewer = [[Deirdre Severide]] and [[Catherine Brink]], May 20, 2019}}

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Collaborative Negotiation

2019-05-26T04:12:44Z

Catherine Brink: /* How do I start in the collaborative process? */

{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = more resources like this website from the BC Ministry of Justice on
|link = [https://www.clicklaw.bc.ca/resource/1191 Collaborative Law]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
}}In the collaborative process, the parties and their lawyers work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship. The parties work with counsellors and consult experts such as child specialists and financial specialists as the need arises. The collaborative process is meant to address both the legal and the emotional consequences of the breakdown of a relationship.

This section provides a provides a brief introduction to the collaborative process, a step-by-step overview of what happens, and resources for learning more and getting started.

==Introduction==

The collaborative process is a non-adversarial and voluntary process where each party retains a collaboratively trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues arising from separation but also the emotional issues. The emotional issues of separation can often be an impediment to moving forward efficiently with the legal issues. Divorce coaches (counsellors trained in the collaborative process) often work with the couple to manage the emotions typically associated with separation and finalize a parenting plan that best meets the needs of the children. A financial neutral (also trained in the collaborative process) can assist in reviewing all financial options for the couple. If a child’s voice needs to be heard a child specialist can be retained. This may sound like many professionals however in the collaborative process we build the team to suit the needs of the couple and family. This team approach is more specialized and is often a cost-effective way to deal with separation (rather than just leaving it all to the lawyers).

The goal of the collaborative process is to assist the couple in reaching a reasonable settlement that restructures the family in the most positive manner going forward—recognizing that families continue and need to flourish despite separation. Parents need to be able to continue to co-parent effectively after separation.

==How do I start in the collaborative process?==

Because it is a voluntary process, both you and your spouse must agree to proceed in this process. Most collaborative professionals believe that it is most often a more cost-effective and timely process than litigation and consider it to be a more holistic approach to preserving families going through separation.

Once you and your spouse agree to use the collaborative process, each of you must retain a collaboratively trained lawyer. Sometimes the process starts when the couple meets with a divorce coach first and then collaborative lawyers are brought in.

===Finding a collaborative professional===

The first step in the process is to find and meet with a collaborative lawyer or divorce coach. To find collaborative lawyers and divorce coaches go to these websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

===Signing the participation agreement===

The collaborative process starts when the parties and their collaborative lawyers sign a Participation Agreement. That agreement provides that:

* each party will not commence a court action while in the process;
* each party will make full financial disclosure;
* all communications are confidential until a written separation agreement is signed;
* neither of the collaborative lawyers can represent the parties in subsequent contested court proceedings;
* a lawyer must terminate the process if his or her client refuses to provide the financial disclosure requested; and
* the parties will make best efforts to communicate in a respectful manner.

==Next steps in the collaborative process==

The majority of the work in the collaborative process takes place in meetings with the collaborative professionals and the couple. The professionals strive to identify the needs and interests of each spouse, and together with the spouses, discuss options for settlement and seek resolution of the issues. Typically the couple is very involved in the discussions and retains control over the process and the outcome. As needed, the divorce coaches and the financial neutral participate in these meetings.

===Financial disclosure===

As in any process used to resolve matters arising from separation, financial disclosure is essential. The collaborative lawyers seeks full disclosure of all documents and information relevant to the issues between the spouses. Relevant documents often include:

*statements for bank accounts, retirement savings accounts, investment accounts and all other financial assets,
*current statements for debts including loans, mortgages and credit cards,
*income tax returns,
*corporate financial statements and corporate tax returns, and
*confirmation of income.

The spouses produce their documents and information to the collaborative team on the understanding that discussions and negotiations throughout the process will remain private and confidential amongst the collaborative team.

===Exploring options for settlement===

Once financial disclosure has been made, the spouses and the collaborative lawyers (sometimes a financial neutral is involved) begin exploring options for settlement while maintaining confidentiality throughout. If necessary we obtain an opinion with respect to the current market value of real estate, shares in a business or other assets. In the collaborative process a joint retainer for one opinion is typically sought to begin the discussions.

Discussions continue until the spouses reach a resolution that meets some of the highest needs of each spouse. Because settlement discussions are confidential, brainstorming options for settlement can be expansive. Settlements can and often are creative, depending on the needs of each spouse.

You may want to have a look at "[[Family Law Mediation#Tips for successful mediation|Tips for successful mediation]]" in the section on [[Family Law Mediation]] in this chapter. It has information about communication skills that can be helpful during the negotiation process.

===Parenting plan===

When there are children, the parents will often work with the divorce coaches to resolve a parenting plan. The parents meet with the divorce coaches to create and finalize the parenting plan focusing on the best interests of the children. If needed, a child specialist may be involved to meet with the child or children to bring back to the parents and the coaches the voice of the child or children. While the coaches are working with the parents to finalize a parenting plan they can often help the parents to deal with any emotional issues that arise and equip the parents to co-parent in a more effective way going forward.

===Reaching an agreement===

The collaborative lawyers and coaches strive to assist the parties to reach a durable agreement (one that meets some of each of their highest needs) in a timely manner and without the time pressures of court. The collaborative lawyers will confirm the terms of the settlement reached in a separation agreement and attach to that agreement the parenting plan. The collaborative process ends when the separation agreement is finalized.

Read the [[Separation Agreements]] section in the [[Family Agreements]] chapter for a discussion about separation agreements and their effect.

==What if a resolution is not reached in the collaborative process?==

Approximately 92% to 95% of all collaborative matters started result in a resolution (a separation agreement). So it isn’t often that a resolution is not reached. However, if that is the case, the parties must retain new lawyers and seek resolution in another process. All discussions and negotiations in the collaborative process are confidential and cannot be used in any way by a spouse in subsequent court proceedings. Despite this, there typically is a lot of learning from the collaborative process that is useful going forward.

==Collaborative Divorce Pro Bono Program==

The BC Collaborative Roster Society has designed and runs a pro bono program for collaborative divorce. This is a program that provides a collaborative team and the collaborative process to a couple that meets the eligibility criteria to resolve their separation. For more information about eligibility and to apply to the pro bono, see the [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''

===Links===
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
* [http://www.nocourt.ca Collaborative Law Group of Nelson]
* [http://nocourt.net/ Collaborative Association in Metro Vancouver]

===Downloads===

A sample collaborative process participation agreement is available for download: [[Media:Participation Agreement sample.pdf | Participation Agreement (Sample) PDF]]

In the sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers.

This sample document is just a generic reference. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation. It may not resemble the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only. Copies of the most up to date participation agreements used by collaborative process professionals in BC can be found on the [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.

{{REVIEWED | reviewer = [[Deirdre Severide]] and [[Catherine Brink]], May 20, 2019}}

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Resolving Family Law Problems out of Court

2019-05-26T04:09:55Z

Catherine Brink: /* Introduction */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
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|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d4 Law Society Rules], Part 3, Division 4

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-26T04:08:12Z

Catherine Brink:

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d4 Law Society Rules], Part 3, Division 4

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019
}}

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How Do I Start a Collaborative Process with My Spouse?

2019-05-26T03:07:08Z

Catherine Brink: /* Pick the right moment */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

You can't force your ex to start the collaborative process with you, you can only do it with their agreement. Your ex isn't likely to agree to try a collaborative approach to settlement if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting the collaborative process can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Harkamal what happened with her and Baljinder, and she said that they used the collaborative divorce process."</blockquote>

At this point, it's all about getting your ex to try the collaborative process, and it's your job to sell the idea. Here are some reasons why the collaborative approach is a really, really good idea:

*the collaborative process will give you and your ex the best chance of leaving your relationship on good terms,
*you can both participate in making the important decisions about your kids, your money and your property,
*other helping professionals, like registered clinical counsellors and financial experts, can be brought into the process whenever their specific expertise would help, without paying the lawyers to do everything,
*everyone is committed to finding a settlement without going to court, including the lawyers,
*you can create the solution that is best for you and your family,
*settlements reached through negotiation tend to last longer than decisions imposed by a judge after a trial,
*the collaborative process is cheaper than going to court, and
*you'll be done in a fraction of the time that you would have spent in court.

Going to trial will cost a minimum of $15,000 in lawyer's fees for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to try a collaborative approach, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish. Or maybe your ex would be willing to meet with a counsellor trained in the collaborative process who can help you both work on a parenting plan before starting the process with lawyers. Some people are more open to working on the parenting aspect and are wary of hiring a lawyer, so that can be a good way to start.

==Hire collaborative lawyers==

Now that your ex has agreed to the collaborative process, you each need to hire a lawyer trained in collaborative practice model and get the process underway.

Lawyers who work in the collaborative practice model will say as much in their advertising. Before you hire your lawyer, first ask around. Have any of your friends used a collaborative lawyer, and what did they think of them? You can also find a list of lawyers in collaborative practice groups in your neighbourhood, or through the BC-wide [http://www.bccollaborativerostersociety.com Collaborative Roster Society]. Collaborative practice groups will have lists of their members who are lawyers, mental health professionals and financial specialists, and the odds are pretty good that if you find a collaborative lawyer who you think you'll work well with, the lawyer will be able to recommend a handful of other lawyers from the same practice group for your ex.

==For more information==

You can find out more about the collaborative process in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

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How Do I Start a Collaborative Process with My Spouse?

2019-05-26T03:04:28Z

Catherine Brink: /* Hire collaborative lawyers */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

You can't force your ex to start the collaborative process with you, you can only do it with their agreement. Your ex isn't likely to agree to try a collaborative approach to settlement if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting the collaborative process can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Harkamal what happened with her and Baljinder, and she said that they used the collaborative divorce process."</blockquote>

At this point, it's all about getting your ex to try the collaborative process, and it's your job to sell the idea. Here are some reasons why the collaborative approach is a really, really good idea:

*the collaborative process will give you and your ex the best chance of leaving your relationship on good terms,
*you can both participate in making the important decisions about your kids, your money and your property,
*other helping professionals, like registered clinical counsellors and financial experts, can be brought into the process whenever their specific expertise would help, without paying the lawyers to do everything,
*everyone is committed to finding a settlement without going to court, including the lawyers,
*you can create the solution that is best for you and your family,
*settlements reached through negotiation tend to last longer than decisions imposed by a judge after a trial,
*the collaborative process is cheaper than going to court, and
*you'll be done in a fraction of the time that you would have spent in court.

Going to trial will cost a minimum of $15,000 in lawyer's fees for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to try a collaborative approach, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

==Hire collaborative lawyers==

Now that your ex has agreed to the collaborative process, you each need to hire a lawyer trained in collaborative practice model and get the process underway.

Lawyers who work in the collaborative practice model will say as much in their advertising. Before you hire your lawyer, first ask around. Have any of your friends used a collaborative lawyer, and what did they think of them? You can also find a list of lawyers in collaborative practice groups in your neighbourhood, or through the BC-wide [http://www.bccollaborativerostersociety.com Collaborative Roster Society]. Collaborative practice groups will have lists of their members who are lawyers, mental health professionals and financial specialists, and the odds are pretty good that if you find a collaborative lawyer who you think you'll work well with, the lawyer will be able to recommend a handful of other lawyers from the same practice group for your ex.

==For more information==

You can find out more about the collaborative process in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

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How Do I Start a Collaborative Process with My Spouse?

2019-05-26T02:56:00Z

Catherine Brink: /* For more information */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

You can't force your ex to start the collaborative process with you, you can only do it with their agreement. Your ex isn't likely to agree to try a collaborative approach to settlement if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting the collaborative process can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Harkamal what happened with her and Baljinder, and she said that they used the collaborative divorce process."</blockquote>

At this point, it's all about getting your ex to try the collaborative process, and it's your job to sell the idea. Here are some reasons why the collaborative approach is a really, really good idea:

*the collaborative process will give you and your ex the best chance of leaving your relationship on good terms,
*you can both participate in making the important decisions about your kids, your money and your property,
*other helping professionals, like registered clinical counsellors and financial experts, can be brought into the process whenever their specific expertise would help, without paying the lawyers to do everything,
*everyone is committed to finding a settlement without going to court, including the lawyers,
*you can create the solution that is best for you and your family,
*settlements reached through negotiation tend to last longer than decisions imposed by a judge after a trial,
*the collaborative process is cheaper than going to court, and
*you'll be done in a fraction of the time that you would have spent in court.

Going to trial will cost a minimum of $15,000 in lawyer's fees for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to try a collaborative approach, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

==Hire collaborative lawyers==

Now that your ex has agreed to a collaborative settlement process, you each need to hire a lawyer trained in collaborative practices and get the process underway.

Lawyers who work in a collaborative practice model will say as much in their advertising. You can also do an internet search for "collaborative lawyer bc" that will give you a list of collaborative lawyers and, even better, collaborative practice groups in your neighbourhood.

Collaborative practice groups will have lists of their members who are lawyers, mental health professionals and financial specialists, and the odds are pretty good that if you find a collaborative lawyer who you think you'll work well with, the lawyer will be able to recommend a handful of other lawyers from the same practice group for your ex.

Before you hire your lawyer, first ask around. Have any of your friends used a collaborative lawyer, and what did they think of them? If that doesn't work, call a family law lawyer. Most family law lawyers, even family law lawyers who aren't trained in collaborative processes, will be able to recommend you to someone they think highly of.

==For more information==

You can find out more about the collaborative process in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

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How Do I Start a Collaborative Process with My Spouse?

2019-05-26T02:54:58Z

Catherine Brink: /* Pick the right moment */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

You can't force your ex to start the collaborative process with you, you can only do it with their agreement. Your ex isn't likely to agree to try a collaborative approach to settlement if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting the collaborative process can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Harkamal what happened with her and Baljinder, and she said that they used the collaborative divorce process."</blockquote>

At this point, it's all about getting your ex to try the collaborative process, and it's your job to sell the idea. Here are some reasons why the collaborative approach is a really, really good idea:

*the collaborative process will give you and your ex the best chance of leaving your relationship on good terms,
*you can both participate in making the important decisions about your kids, your money and your property,
*other helping professionals, like registered clinical counsellors and financial experts, can be brought into the process whenever their specific expertise would help, without paying the lawyers to do everything,
*everyone is committed to finding a settlement without going to court, including the lawyers,
*you can create the solution that is best for you and your family,
*settlements reached through negotiation tend to last longer than decisions imposed by a judge after a trial,
*the collaborative process is cheaper than going to court, and
*you'll be done in a fraction of the time that you would have spent in court.

Going to trial will cost a minimum of $15,000 in lawyer's fees for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to try a collaborative approach, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

==Hire collaborative lawyers==

Now that your ex has agreed to a collaborative settlement process, you each need to hire a lawyer trained in collaborative practices and get the process underway.

Lawyers who work in a collaborative practice model will say as much in their advertising. You can also do an internet search for "collaborative lawyer bc" that will give you a list of collaborative lawyers and, even better, collaborative practice groups in your neighbourhood.

Collaborative practice groups will have lists of their members who are lawyers, mental health professionals and financial specialists, and the odds are pretty good that if you find a collaborative lawyer who you think you'll work well with, the lawyer will be able to recommend a handful of other lawyers from the same practice group for your ex.

Before you hire your lawyer, first ask around. Have any of your friends used a collaborative lawyer, and what did they think of them? If that doesn't work, call a family law lawyer. Most family law lawyers, even family law lawyers who aren't trained in collaborative processes, will be able to recommend you to someone they think highly of.

==For more information==

You can find out more about collaborative processes in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 5, 2017}}

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How Do I Start Mediation with My Spouse?

2019-05-26T02:51:27Z

Catherine Brink: /* For more information */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! According to a recent Canadian study, the average lawyer’s bill for a person to resolve their dispute through litigation was $12,395 (for low-conflict cases) and $54,390 (for high-conflict cases).

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

It can also be helpful to give them some resources – like sending them the link to the [[mediation]] section of this website, or sending them [https://mylawbc.com/graphic/mediation.php My Law BC’s] handy infographic about mediation.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers. You can also find a list of some family law mediators at [https://www.mediatebc.com/find-a-mediator/family-roster Mediate BC ].

==For more information==

You can find out more about using [[mediation]] in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

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How Do I Start Mediation with My Spouse?

2019-05-26T00:30:29Z

Catherine Brink:

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! According to a recent Canadian study, the average lawyer’s bill for a person to resolve their dispute through litigation was $12,395 (for low-conflict cases) and $54,390 (for high-conflict cases).

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

It can also be helpful to give them some resources – like sending them the link to the [[mediation]] section of this website, or sending them [https://mylawbc.com/graphic/mediation.php My Law BC’s] handy infographic about mediation.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers. You can also find a list of some family law mediators at [https://www.mediatebc.com/find-a-mediator/family-roster Mediate BC ].

==For more information==

You can find out more about using mediation in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|S]]
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How Do I Start Mediation with My Spouse?

2019-05-26T00:27:26Z

Catherine Brink: /* Pick the right moment */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! According to a recent Canadian study, the average lawyer’s bill for a person to resolve their dispute through litigation was $12,395 (for low-conflict cases) and $54,390 (for high-conflict cases).

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

It can also be helpful to give them some resources – like sending them the link to the [[mediation]] section of this website, or sending them [https://mylawbc.com/graphic/mediation.php My Law BC’s] handy infographic about mediation.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers. You can also find a list of some family law mediators at [https://www.mediatebc.com/find-a-mediator/family-roster Mediate BC ].

==For more information==

You can find out more about using mediation in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 5, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|S]]
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How Do I Start Mediation with My Spouse?

2019-05-26T00:23:38Z

Catherine Brink: /* Hire a mediator */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! According to a recent Canadian study, the average lawyer’s bill for a person to resolve their dispute through litigation was $12,395 (for low-conflict cases) and $54,390 (for high-conflict cases).

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers. You can also find a list of some family law mediators at [https://www.mediatebc.com/find-a-mediator/family-roster Mediate BC ].

==For more information==

You can find out more about using mediation in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 5, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|S]]
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How Do I Start Mediation with My Spouse?

2019-05-26T00:23:19Z

Catherine Brink: /* Hire a mediator */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! According to a recent Canadian study, the average lawyer’s bill for a person to resolve their dispute through litigation was $12,395 (for low-conflict cases) and $54,390 (for high-conflict cases).

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers. You can also find a list of some family law mediators at [ https://www.mediatebc.com/find-a-mediator/family-roster Mediate BC ].

==For more information==

You can find out more about using mediation in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 5, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

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How Do I Start Mediation with My Spouse?

2019-05-26T00:18:36Z

Catherine Brink: /* Pick the right moment */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one! According to a recent Canadian study, the average lawyer’s bill for a person to resolve their dispute through litigation was $12,395 (for low-conflict cases) and $54,390 (for high-conflict cases).

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers.

==For more information==

You can find out more about using mediation in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 5, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|S]]
[[Category:Alternatives to Court|S]]
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How Do I Start Mediation with My Spouse?

2019-05-25T16:59:07Z

Catherine Brink: /* Pick the right moment */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

With one exception, you can't force your ex to go to mediation with you, you can only do it with their agreement. Your ex isn't likely to agree to go and see a mediator if they are still pissed off about a recent argument or still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, and we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."</blockquote>

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

*mediation is much cheaper than hiring lawyers and going to court,
*the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
*the decision a judge might make may be one that neither of you are happy with at all,
*mediation is much cheaper than hiring lawyers and going to court,
*settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
*mediation will leave you feeling less angry with each other than fighting about things in court,
*mediation is much cheaper than hiring lawyers and going to court,
*mediation can be over and done with in a fraction of the time that it takes to go to court, and
*if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trial will cost a minimum of $15,000 in lawyer's fees (each) for a two- or three-day trial. Most family law trials last one or two weeks or longer, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to see a mediator, tell them to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme Court, you may file a Notice to Mediate under the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]''. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.



==Hire a mediator==

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyer. Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers.

==For more information==

You can find out more about using mediation in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 5, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

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How Do I Start Negotiations with My Spouse?

2019-05-25T16:24:57Z

Catherine Brink: /* Using lawyers */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

It's easiest to start negotiations when everyone's emotions are relatively calm.

For negotiation to work, both people must be able to listen and talk to one another with respect. Negotiations will not succeed if the wounds from the end of the relationship are still fresh. There are a few reasons for this:

*people who are angry aren't likely to be too accommodating and generally can't see reason even when it's staring them in the face,
*people who are upset and sad are likely to accept a bad deal, sometimes out of remorse and sometimes out of guilt, and
*people who are too stressed out are likely to accept a bad deal just to get everything over with.

When you've got the right moment, starting the process of negotiation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know this has been a really hard time, and we also have some decisions to make."</blockquote>

Say whatever you want really, there's no perfect rule that will apply to every couple. Only you know how best to approach your ex. It might help to reassure your ex that you mean no harm:

<blockquote>"I don't want to stop you from being a great mother/father, and I want to make sure you're there for the kids. We just need some ground rules about when we're each with the kids."</blockquote>
<blockquote>"I'm not out to screw you over. I don't want your car or your grandmother's china collection, but we really need to talk about how we can fairly split our things up."</blockquote>
<blockquote>"I want to help you and the kids get by, I know that your job doesn't pay enough. We have to discuss how I can pay for my place and my bills and how much you need. I've had a look at the Child Support Guidelines, and they say I should pay support at $325 per month. I'll give you $350."</blockquote>
<blockquote>"This really isn't about you and it's not about me. It's about what will work best for the kids. We may not be partners anymore, but we're always going to be parents. I know that we both want what is best for the kids. With that goal in mind, I have faith that we can make it work."</blockquote>

Sometimes nothing seems to work. In cases like that, often all that helps is the passage of time. Some people need time to grieve and process their emotions as they move through this transition before they are ready to sit down and talk.

==Starting the dialogue==

When you and your ex are ready to start talking, start talking! Try to make the process as cooperative as possible, which usually means not preparing a stack of calculations to hand to your ex the moment they sit down. No one likes to be bombarded by a bunch of documents as if there was a done deal. Make a list of the things you need to talk about together. Usually this includes:

#where the children will live,
#how decisions about the children will be made,
#how much child support should be paid,
#whether someone is in need of spousal support, and how much should be paid, and
#how the family assets and debts will be divided.

Other lists will be useful as the negotiations continue:

#which assets are the family property that needs to be divided,
#how much that property is worth.
#what are the family debts and how much is owing,
#when will each parent be with the children,
#how will holidays and other special days be shared, and
#what additional information each of you needs to collect.

Most importantly, keep a separate piece of paper to write down the things that you agree on as you agree on them. This will help to keep a record of the issues that have been decided, and give each of you a sense of commitment to those decisions.

As discussions go on, you might realize that you and your ex have different ideas about what the law says about an issue. This is the perfect time to take a break and arrange to meet a week later. You can tell your ex about this website and encourage them to read it to get the basic background information.

If you need more help, each of you could also meet with a lawyer to talk about things. If you decide to do this, it is important that the lawyers understand that you and your ex are negotiating these issues, not fighting about them.

==Using lawyers==

If you find that you're getting stuck on one or more points, or if your ex is refusing to talk to you at all, it's probably time to hire a lawyer.

Hiring a lawyer doesn't mean that you're headed to court and eventually to trial. It means that you're serious about these issues, and you want to move things to the next level. Most lawyers will write a letter to your ex explaining that they've been hired by you to start or continue negotiations with an eye to reaching settlement.

Lawyers often negotiate directly with the lawyer for the other person, through letters and telephone calls. Sometimes lawyers will have a meeting where everyone's there: you, your lawyer, your ex and your ex's lawyer. These are called four-way meetings, and they can be very helpful to move discussions along. If you are able to sit down with your ex and come to agreement on some matters, but get stuck on others, often the most efficient way to resolve the remaining issues are to sit down in a meeting with your lawyers or with a mediator. Where lawyers negotiate primarily through letters rather than phone calls and face-to-face meetings, this can quickly escalate misunderstandings and get people on the defensive. (Not to mention increasing your cost!) . If you and your ex are both committed to resolving the remaining issues out of court, look for lawyers whose focus is on resolving matters outside of court. Lawyers trained in and practicing in the collaborative process model are one option for finding a lawyer with such an approach.

==Using mediators==

As an alternative to each of you hiring your own lawyer, you should also seriously consider hiring a professional mediator. The mediator's job is to help two people reach an agreement of their own; the mediator may direct the discussion, but the mediator isn't your ally or your ex's ally. The mediator is completely neutral.

Mediation can be very effective, and can often bring people to a settlement, even where their positions seem to be very far apart.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and will usually advertise themselves as such.

==For more information==

You can find out more about using out-of-court options in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

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How Do I Start Negotiations with My Spouse?

2019-05-25T16:18:02Z

Catherine Brink: /* Using lawyers */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

It's easiest to start negotiations when everyone's emotions are relatively calm.

For negotiation to work, both people must be able to listen and talk to one another with respect. Negotiations will not succeed if the wounds from the end of the relationship are still fresh. There are a few reasons for this:

*people who are angry aren't likely to be too accommodating and generally can't see reason even when it's staring them in the face,
*people who are upset and sad are likely to accept a bad deal, sometimes out of remorse and sometimes out of guilt, and
*people who are too stressed out are likely to accept a bad deal just to get everything over with.

When you've got the right moment, starting the process of negotiation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know this has been a really hard time, and we also have some decisions to make."</blockquote>

Say whatever you want really, there's no perfect rule that will apply to every couple. Only you know how best to approach your ex. It might help to reassure your ex that you mean no harm:

<blockquote>"I don't want to stop you from being a great mother/father, and I want to make sure you're there for the kids. We just need some ground rules about when we're each with the kids."</blockquote>
<blockquote>"I'm not out to screw you over. I don't want your car or your grandmother's china collection, but we really need to talk about how we can fairly split our things up."</blockquote>
<blockquote>"I want to help you and the kids get by, I know that your job doesn't pay enough. We have to discuss how I can pay for my place and my bills and how much you need. I've had a look at the Child Support Guidelines, and they say I should pay support at $325 per month. I'll give you $350."</blockquote>
<blockquote>"This really isn't about you and it's not about me. It's about what will work best for the kids. We may not be partners anymore, but we're always going to be parents. I know that we both want what is best for the kids. With that goal in mind, I have faith that we can make it work."</blockquote>

Sometimes nothing seems to work. In cases like that, often all that helps is the passage of time. Some people need time to grieve and process their emotions as they move through this transition before they are ready to sit down and talk.

==Starting the dialogue==

When you and your ex are ready to start talking, start talking! Try to make the process as cooperative as possible, which usually means not preparing a stack of calculations to hand to your ex the moment they sit down. No one likes to be bombarded by a bunch of documents as if there was a done deal. Make a list of the things you need to talk about together. Usually this includes:

#where the children will live,
#how decisions about the children will be made,
#how much child support should be paid,
#whether someone is in need of spousal support, and how much should be paid, and
#how the family assets and debts will be divided.

Other lists will be useful as the negotiations continue:

#which assets are the family property that needs to be divided,
#how much that property is worth.
#what are the family debts and how much is owing,
#when will each parent be with the children,
#how will holidays and other special days be shared, and
#what additional information each of you needs to collect.

Most importantly, keep a separate piece of paper to write down the things that you agree on as you agree on them. This will help to keep a record of the issues that have been decided, and give each of you a sense of commitment to those decisions.

As discussions go on, you might realize that you and your ex have different ideas about what the law says about an issue. This is the perfect time to take a break and arrange to meet a week later. You can tell your ex about this website and encourage them to read it to get the basic background information.

If you need more help, each of you could also meet with a lawyer to talk about things. If you decide to do this, it is important that the lawyers understand that you and your ex are negotiating these issues, not fighting about them.

==Using lawyers==

If you find that you're getting stuck on one or more points, or if your ex is refusing to talk to you at all, it's probably time to hire a lawyer.

Hiring a lawyer doesn't mean that you're headed to court and eventually to trial. It means that you're serious about these issues, and you want to move things to the next level. Most lawyers will write a letter to your ex explaining that they've been hired by you to start or continue negotiations with an eye to reaching settlement.

Lawyers often negotiate directly with the lawyer for the other person, through letters and telephone calls. Sometimes lawyers will have a meeting where everyone's there: you, your lawyer, your ex and your ex's lawyer. These are called four-way meetings, and they can be very helpful to move discussions along. If you are able to sit down with your ex and come to agreement on some matters, but get stuck on others, often the most efficient way to resolve the remaining issues are to sit down in a meeting with your lawyers or with a mediator. Where lawyers negotiate primarily through letters rather than phone calls and face-to-face meetings, this can quickly escalate misunderstandings and get people on the defensive. (Not to mention increasing costs!) . If you and your ex are both committed to resolving the remaining issues out of court, look for lawyers whose focus is on resolving matters outside of court. Lawyers trained in and actively practice in the collaborative process model are one option for finding a lawyer with such an approach.

==Using mediators==

As an alternative to each of you hiring your own lawyer, you should also seriously consider hiring a professional mediator. The mediator's job is to help two people reach an agreement of their own; the mediator may direct the discussion, but the mediator isn't your ally or your ex's ally. The mediator is completely neutral.

Mediation can be very effective, and can often bring people to a settlement, even where their positions seem to be very far apart.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and will usually advertise themselves as such.

==For more information==

You can find out more about using out-of-court options in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

{{JP Boyd on Family Law Navbox|type=how}}

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How Do I Start Negotiations with My Spouse?

2019-05-25T16:11:07Z

Catherine Brink: /* For more information */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

It's easiest to start negotiations when everyone's emotions are relatively calm.

For negotiation to work, both people must be able to listen and talk to one another with respect. Negotiations will not succeed if the wounds from the end of the relationship are still fresh. There are a few reasons for this:

*people who are angry aren't likely to be too accommodating and generally can't see reason even when it's staring them in the face,
*people who are upset and sad are likely to accept a bad deal, sometimes out of remorse and sometimes out of guilt, and
*people who are too stressed out are likely to accept a bad deal just to get everything over with.

When you've got the right moment, starting the process of negotiation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know this has been a really hard time, and we also have some decisions to make."</blockquote>

Say whatever you want really, there's no perfect rule that will apply to every couple. Only you know how best to approach your ex. It might help to reassure your ex that you mean no harm:

<blockquote>"I don't want to stop you from being a great mother/father, and I want to make sure you're there for the kids. We just need some ground rules about when we're each with the kids."</blockquote>
<blockquote>"I'm not out to screw you over. I don't want your car or your grandmother's china collection, but we really need to talk about how we can fairly split our things up."</blockquote>
<blockquote>"I want to help you and the kids get by, I know that your job doesn't pay enough. We have to discuss how I can pay for my place and my bills and how much you need. I've had a look at the Child Support Guidelines, and they say I should pay support at $325 per month. I'll give you $350."</blockquote>
<blockquote>"This really isn't about you and it's not about me. It's about what will work best for the kids. We may not be partners anymore, but we're always going to be parents. I know that we both want what is best for the kids. With that goal in mind, I have faith that we can make it work."</blockquote>

Sometimes nothing seems to work. In cases like that, often all that helps is the passage of time. Some people need time to grieve and process their emotions as they move through this transition before they are ready to sit down and talk.

==Starting the dialogue==

When you and your ex are ready to start talking, start talking! Try to make the process as cooperative as possible, which usually means not preparing a stack of calculations to hand to your ex the moment they sit down. No one likes to be bombarded by a bunch of documents as if there was a done deal. Make a list of the things you need to talk about together. Usually this includes:

#where the children will live,
#how decisions about the children will be made,
#how much child support should be paid,
#whether someone is in need of spousal support, and how much should be paid, and
#how the family assets and debts will be divided.

Other lists will be useful as the negotiations continue:

#which assets are the family property that needs to be divided,
#how much that property is worth.
#what are the family debts and how much is owing,
#when will each parent be with the children,
#how will holidays and other special days be shared, and
#what additional information each of you needs to collect.

Most importantly, keep a separate piece of paper to write down the things that you agree on as you agree on them. This will help to keep a record of the issues that have been decided, and give each of you a sense of commitment to those decisions.

As discussions go on, you might realize that you and your ex have different ideas about what the law says about an issue. This is the perfect time to take a break and arrange to meet a week later. You can tell your ex about this website and encourage them to read it to get the basic background information.

If you need more help, each of you could also meet with a lawyer to talk about things. If you decide to do this, it is important that the lawyers understand that you and your ex are negotiating these issues, not fighting about them.

==Using lawyers==

If you find that you're getting stuck on one or more points, or if your ex is refusing to talk to you at all, it's probably time to hire a lawyer.

Hiring a lawyer doesn't mean that you're headed to court and eventually to trial. It means that you're serious about these issues, and you want to move things to the next level. Most lawyers will write a letter to your ex explaining that they've been hired by you to start or continue negotiations with an eye to reaching settlement. (Of course, the lawyer will be there if nothing works and you do have to start a court proceeding.)

Lawyers often negotiate directly with the lawyer for the other person, through letters and telephone calls. Sometimes lawyers will have a meeting where everyone's there: you, your lawyer, your ex and your ex's lawyer. These are called four-way meetings, and they can be very helpful to move discussions along.

==Using mediators==

As an alternative to each of you hiring your own lawyer, you should also seriously consider hiring a professional mediator. The mediator's job is to help two people reach an agreement of their own; the mediator may direct the discussion, but the mediator isn't your ally or your ex's ally. The mediator is completely neutral.

Mediation can be very effective, and can often bring people to a settlement, even where their positions seem to be very far apart.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and will usually advertise themselves as such.

==For more information==

You can find out more about using out-of-court options in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|S]]
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How Do I Start Negotiations with My Spouse?

2019-05-25T16:10:02Z

Catherine Brink: /* Starting the dialogue */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

It's easiest to start negotiations when everyone's emotions are relatively calm.

For negotiation to work, both people must be able to listen and talk to one another with respect. Negotiations will not succeed if the wounds from the end of the relationship are still fresh. There are a few reasons for this:

*people who are angry aren't likely to be too accommodating and generally can't see reason even when it's staring them in the face,
*people who are upset and sad are likely to accept a bad deal, sometimes out of remorse and sometimes out of guilt, and
*people who are too stressed out are likely to accept a bad deal just to get everything over with.

When you've got the right moment, starting the process of negotiation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know this has been a really hard time, and we also have some decisions to make."</blockquote>

Say whatever you want really, there's no perfect rule that will apply to every couple. Only you know how best to approach your ex. It might help to reassure your ex that you mean no harm:

<blockquote>"I don't want to stop you from being a great mother/father, and I want to make sure you're there for the kids. We just need some ground rules about when we're each with the kids."</blockquote>
<blockquote>"I'm not out to screw you over. I don't want your car or your grandmother's china collection, but we really need to talk about how we can fairly split our things up."</blockquote>
<blockquote>"I want to help you and the kids get by, I know that your job doesn't pay enough. We have to discuss how I can pay for my place and my bills and how much you need. I've had a look at the Child Support Guidelines, and they say I should pay support at $325 per month. I'll give you $350."</blockquote>
<blockquote>"This really isn't about you and it's not about me. It's about what will work best for the kids. We may not be partners anymore, but we're always going to be parents. I know that we both want what is best for the kids. With that goal in mind, I have faith that we can make it work."</blockquote>

Sometimes nothing seems to work. In cases like that, often all that helps is the passage of time. Some people need time to grieve and process their emotions as they move through this transition before they are ready to sit down and talk.

==Starting the dialogue==

When you and your ex are ready to start talking, start talking! Try to make the process as cooperative as possible, which usually means not preparing a stack of calculations to hand to your ex the moment they sit down. No one likes to be bombarded by a bunch of documents as if there was a done deal. Make a list of the things you need to talk about together. Usually this includes:

#where the children will live,
#how decisions about the children will be made,
#how much child support should be paid,
#whether someone is in need of spousal support, and how much should be paid, and
#how the family assets and debts will be divided.

Other lists will be useful as the negotiations continue:

#which assets are the family property that needs to be divided,
#how much that property is worth.
#what are the family debts and how much is owing,
#when will each parent be with the children,
#how will holidays and other special days be shared, and
#what additional information each of you needs to collect.

Most importantly, keep a separate piece of paper to write down the things that you agree on as you agree on them. This will help to keep a record of the issues that have been decided, and give each of you a sense of commitment to those decisions.

As discussions go on, you might realize that you and your ex have different ideas about what the law says about an issue. This is the perfect time to take a break and arrange to meet a week later. You can tell your ex about this website and encourage them to read it to get the basic background information.

If you need more help, each of you could also meet with a lawyer to talk about things. If you decide to do this, it is important that the lawyers understand that you and your ex are negotiating these issues, not fighting about them.

==Using lawyers==

If you find that you're getting stuck on one or more points, or if your ex is refusing to talk to you at all, it's probably time to hire a lawyer.

Hiring a lawyer doesn't mean that you're headed to court and eventually to trial. It means that you're serious about these issues, and you want to move things to the next level. Most lawyers will write a letter to your ex explaining that they've been hired by you to start or continue negotiations with an eye to reaching settlement. (Of course, the lawyer will be there if nothing works and you do have to start a court proceeding.)

Lawyers often negotiate directly with the lawyer for the other person, through letters and telephone calls. Sometimes lawyers will have a meeting where everyone's there: you, your lawyer, your ex and your ex's lawyer. These are called four-way meetings, and they can be very helpful to move discussions along.

==Using mediators==

As an alternative to each of you hiring your own lawyer, you should also seriously consider hiring a professional mediator. The mediator's job is to help two people reach an agreement of their own; the mediator may direct the discussion, but the mediator isn't your ally or your ex's ally. The mediator is completely neutral.

Mediation can be very effective, and can often bring people to a settlement, even where their positions seem to be very far apart.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and will usually advertise themselves as such.

==For more information==

You can find out more about using alternatives to court in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|S]]
[[Category:Alternatives to Court|S]]
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How Do I Start Negotiations with My Spouse?

2019-05-25T16:06:46Z

Catherine Brink: /* Pick the right moment */

{{JP Boyd on Family Law How Do I TOC|expanded=alternatives}}

==Pick the right moment==

It's easiest to start negotiations when everyone's emotions are relatively calm.

For negotiation to work, both people must be able to listen and talk to one another with respect. Negotiations will not succeed if the wounds from the end of the relationship are still fresh. There are a few reasons for this:

*people who are angry aren't likely to be too accommodating and generally can't see reason even when it's staring them in the face,
*people who are upset and sad are likely to accept a bad deal, sometimes out of remorse and sometimes out of guilt, and
*people who are too stressed out are likely to accept a bad deal just to get everything over with.

When you've got the right moment, starting the process of negotiation can be as simple as calling your ex up and inviting them out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know this has been a really hard time, and we also have some decisions to make."</blockquote>

Say whatever you want really, there's no perfect rule that will apply to every couple. Only you know how best to approach your ex. It might help to reassure your ex that you mean no harm:

<blockquote>"I don't want to stop you from being a great mother/father, and I want to make sure you're there for the kids. We just need some ground rules about when we're each with the kids."</blockquote>
<blockquote>"I'm not out to screw you over. I don't want your car or your grandmother's china collection, but we really need to talk about how we can fairly split our things up."</blockquote>
<blockquote>"I want to help you and the kids get by, I know that your job doesn't pay enough. We have to discuss how I can pay for my place and my bills and how much you need. I've had a look at the Child Support Guidelines, and they say I should pay support at $325 per month. I'll give you $350."</blockquote>
<blockquote>"This really isn't about you and it's not about me. It's about what will work best for the kids. We may not be partners anymore, but we're always going to be parents. I know that we both want what is best for the kids. With that goal in mind, I have faith that we can make it work."</blockquote>

Sometimes nothing seems to work. In cases like that, often all that helps is the passage of time. Some people need time to grieve and process their emotions as they move through this transition before they are ready to sit down and talk.

==Starting the dialogue==

When you and your ex are ready to start talking, start talking! Try to make the process as cooperative as possible, which usually means not preparing a stack of calculations to hand to your ex the moment they sit down. No one likes to be bombarded by a bunch of documents as if there was a done deal. Make a list of the things you need to talk about together. Usually this includes:

#where the children will live for most of the time,
#how decisions about the children will be made,
#how much child support should be paid,
#whether someone is in need of spousal support, and how much should be paid, and
#how the family assets will be divided.

Other lists will be useful as the negotiations continue:

#which assets are the family property that needs to be divided,
#how much that property is worth.
#what are the family debts and how much is owing,
#when will each parent be with the children,
#how will holidays and other special days be shared, and
#what additional information each of you needs to collect.

Most importantly, keep a separate piece of paper to write down the things that you agree on as you agree on them. This will help to keep a record of the issues that have been decided, and give each of you a sense of commitment to those decisions.

As discussions go on, you might realize that you and your ex have different ideas about what the law says about an issue. This is the perfect time to take a break and arrange to meet a week later. You can tell your ex about this website and encourage them to read it to get the basic background information.

If you need more help, each of you could also meet with a lawyer to talk about things. If you decide to do this, it is important that the lawyers understand that you and your ex are negotiating these issues, not fighting about them.

==Using lawyers==

If you find that you're getting stuck on one or more points, or if your ex is refusing to talk to you at all, it's probably time to hire a lawyer.

Hiring a lawyer doesn't mean that you're headed to court and eventually to trial. It means that you're serious about these issues, and you want to move things to the next level. Most lawyers will write a letter to your ex explaining that they've been hired by you to start or continue negotiations with an eye to reaching settlement. (Of course, the lawyer will be there if nothing works and you do have to start a court proceeding.)

Lawyers often negotiate directly with the lawyer for the other person, through letters and telephone calls. Sometimes lawyers will have a meeting where everyone's there: you, your lawyer, your ex and your ex's lawyer. These are called four-way meetings, and they can be very helpful to move discussions along.

==Using mediators==

As an alternative to each of you hiring your own lawyer, you should also seriously consider hiring a professional mediator. The mediator's job is to help two people reach an agreement of their own; the mediator may direct the discussion, but the mediator isn't your ally or your ex's ally. The mediator is completely neutral.

Mediation can be very effective, and can often bring people to a settlement, even where their positions seem to be very far apart.

Before hiring a mediator, make sure you've looked into their background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and will usually advertise themselves as such.

==For more information==

You can find out more about using alternatives to court in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|S]]
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Resolving Family Law Problems out of Court

2019-05-25T15:50:35Z

Catherine Brink:

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d4 Law Society Rules], Part 3, Division 4

{{REVIEWED | reviewer = [[Catherine Brink]], May 25, 2019
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:49:21Z

Catherine Brink: /* Links */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
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|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d4 Law Society Rules], Part 3, Division 4

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:41:19Z

Catherine Brink: /* Separation agreements */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, the collaborative process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:39:08Z

Catherine Brink: /* Unbundling dispute resolution processes */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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{{Clicklawbadge
|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Dispute resolution processes - thinking outside the box==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, the collaborative process, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:32:40Z

Catherine Brink: /* Parenting coordination */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:32:02Z

Catherine Brink: /* Parenting coordination */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ Rules], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:24:32Z

Catherine Brink: /* Collaborative process */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:16:01Z

Catherine Brink: /* Alternatives to court */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Out-of-court options==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Simply put, mediation and the collaborative process are structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:14:34Z

Catherine Brink: /* Collaborative process */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:13:52Z

Catherine Brink: /* Collaborative process */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the collaborative process, see the [[Collaborative Processes]] section of this chapter.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:13:26Z

Catherine Brink: /* Collaborative process */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise to create parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the collaborative process, see the [[Collaborative Processes]] section of this chapter.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:11:28Z

Catherine Brink: /* Collaborative process */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise to creating good parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the collaborative process, see the [[Collaborative Processes]] section of this chapter.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T15:10:30Z

Catherine Brink: /* Collaborative process */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
}}
{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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{{Clicklawbadge
|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise to creating good parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Collaborative Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the Collaborative Processes section of this chapter.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T14:56:11Z

Catherine Brink: /* The Family Law Act and alternatives to court */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and out-of-court options==

According to the Ministry of Justice's [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-explained guide to the ''Family Law Act''], the BC ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes outside of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T14:36:43Z

Catherine Brink: /* Introduction */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court options always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and alternatives to court==

According to the Ministry of Justice's [http://www.ag.gov.bc.ca/legislation/family-law/pdf/part2.pdf guide to the ''Family Law Act''], the provincial ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes out of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T14:30:45Z

Catherine Brink:

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all alternatives to litigation is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court alternatives always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and alternatives to court==

According to the Ministry of Justice's [http://www.ag.gov.bc.ca/legislation/family-law/pdf/part2.pdf guide to the ''Family Law Act''], the provincial ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes out of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T14:29:27Z

Catherine Brink:

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another main reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when a party has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all alternatives to litigation is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court alternatives always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and alternatives to court==

According to the Ministry of Justice's [http://www.ag.gov.bc.ca/legislation/family-law/pdf/part2.pdf guide to the ''Family Law Act''], the provincial ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes out of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-25T14:28:53Z

Catherine Brink:

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
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|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if someone else (a judge) makes the decision for them. Another big reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when a party has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all alternatives to litigation is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court alternatives always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and alternatives to court==

According to the Ministry of Justice's [http://www.ag.gov.bc.ca/legislation/family-law/pdf/part2.pdf guide to the ''Family Law Act''], the provincial ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes out of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems out of Court

2019-05-21T06:35:20Z

Catherine Brink: /* Free and lower cost options */

{{JPBOFL Start Chapter
|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]
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{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]
}}
{{Clicklawbadge
|resourcetype = many links to information on
|link = [https://www.clicklaw.bc.ca/global/search?f=Alternatives+to+court%7cFamily+law&so=v alternatives to court]
}}Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.

There are many reasons why it is generally better to resolve matters out of court. Agreements that are made voluntarily by both parties are more likely to be long-lasting and leave both people more satisfied than if a third party (a judge) makes the decision for them. Another big reason is that resolving matters out of court is often, in the long run, cheaper than a court process. That is not to say out of court processes are cheap or free (with the exception of some services which are detailed below). The processes here still require a financial investment. We just think it’s better to invest in one of these processes and come out with a more durable “win-win” agreement for both parties and their children, and to avoid court if you are able to.

This chapter discusses how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when a party has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

==Introduction==

The fundamental goal shared by all alternatives to litigation is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require a certain amount of flexibility and maturity. Most importantly, the people involved 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 some accommodation of the other person's goals, wishes and expectations.

It's not always possible to avoid court. Sometimes one or both people are so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening. But out-of-court alternatives always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends. They are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple has children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at their child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days. The child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.

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

==The ''Family Law Act'' and alternatives to court==

According to the Ministry of Justice's [http://www.ag.gov.bc.ca/legislation/family-law/pdf/part2.pdf guide to the ''Family Law Act''], the provincial ''[[Family Law Act]]'' was written to encourage people to resolve family law problems without having to go to court:

<blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote>
<blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that
every dispute would end in a trial."</blockquote>

The ''Act'' supports the resolution of family law disputes out of court by:

*requiring lawyers to explain the different dispute resolution processes to their clients (ss. 4 and 8),
*requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5),
*providing for the use of parenting coordinators to resolve disputes about parenting once a final order or agreement about parenting arrangements and contact has been reached (ss. 15 to 19),
*including mediation and the collaborative process as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313), and
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).

The ''Act'' also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

<blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote>

This is a dramatic change from the old ''Family Relations Act'', which didn't deal with out-of-court dispute resolution options except in terms of how agreements could be enforced or set aside.

==Alternatives to court==

There really are only two ways to resolve a legal dispute without going to court: you can negotiate a settlement, or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Mediation and the collaborative process are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.

===Negotiation===

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and the collaborative process are simply structured ways of handling this discussion; they are both processes of negotiation.

Couples can negotiate a dispute between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference if a court proceeding has started. Negotiation boils down to this:

<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote>
<blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote>
<blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."</blockquote>

In a process of 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 they reach a settlement, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm what the deal was if people start remembering things differently.

For a quick introduction on to how to start negotiations, see [[How Do I Start Negotiations with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Collaborative process===

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises.

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and Lower Mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)

For a quick introduction to how to start the collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Mediation===

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court action but still want to try and settle out of court.

If they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, depending on the circumstances and the preferences of the parties.

Some lawyers also work as mediators. Lawyers who work as mediators are called ''family law mediators''. They have to have additional training in mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved.

===Arbitration===

Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge. They agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can proceed at their own pace.

Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''[[Family Law Act]]''.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family law arbitrators." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

For a quick introduction to how to start arbitration, see [[How Do I Start Arbitration with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

===Using mediation and arbitration together===

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of resolving any issues that can't be agreed to, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called ''mediation-arbitration'', sometimes shortened to ''med-arb''.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

===Parenting coordination===

Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.

Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services.

More information about the training requirements of parenting coordinators is set out in the Law Society [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules], Part 3, Division 3. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court.

==Free and lower cost options==

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up. They will usually require significant retainers in advance. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

*some mediation services regarding children and support are provided at no cost by [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors family justice counsellors]
*pro bono assistance from a collaborative process team through the Pro Bono Collaborative Divorce Project run by the [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] if you meet certain eligibility requirements
*pro bono mediation at the Pro Bono Family Mediation Clinic run by the [https://www.facebook.com/northshoreprobono/posts/1039542002903682 North Shore Pro Bono Society] if you meet certain eligibility requirements
*a limited amount of mediation paid for in limited circumstances by Legal Aid
*unbundled legal services, or limited scope retainers, include piecemeal assistance from lawyers that focus on the things you need the most help with (see [https://unbundlinglaw.peopleslawschool.ca/ Unbundled Legal Services] for more information on this)

==Unbundling dispute resolution processes==

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement, or by court order, and temporary arrangements get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute.

It seems to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out of court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out of court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

==Formalizing the settlement==

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

===Separation agreements===

A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.

Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

===Minutes of settlement===

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.

===Memoranda of understanding===

A memorandum of understanding describes the terms on which all or part of 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:

<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote>

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.

===Consent orders===

Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started.

Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.

When the judge makes the consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

==Wait, I've changed my mind!==

Generally speaking, it is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on whether the agreement has already been reduced to writing and signed.

===After the agreement has been formalized===

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an ''amending agreement'' or an ''addendum agreement'', or something similar. However, if the other side isn't prepared to change the agreement, 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 may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious 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.

If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]].

It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].

===Before the agreement has been formalized===

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. If this happens, you have two options: live with the agreement, or attempt to get the other side to agree to change the agreement. (Unless you are in the collaborative process, which has specific ground rules around when a deal will be a final deal.)

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:

*Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
*Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
*Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
*Is it worth the risk that the other side will start a court action to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you each gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84gc Arbitration Act]''

===Links===
* [http://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Law Society of BC's webpage on Family Law Mediators]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Law Society's Code of Professional Conduct], Appendix B
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Law Society Rules], Part 3, Division 3

{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016
}}

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