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

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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.  
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 often  (but not always)  better to resolve matters out of court.  One big reason is that it is often, in the long run, cheaper than a court process.  However it is important to note that with the exception of some services provided by Family Justice Counsellors in some communities, and a limited amount of mediation paid for in limited circumstances by Legal Aid, the parties, or one of them, will have to pay for the mediator, arbitrator or parent 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.  Supreme Court does have daily fees that the parties have to pay unless they qualify for indigent status, but there is no charge for the judge.  In Provincial Court there are no charges at all.  But even if Mediation or Parent Coordination is ordered by the court, it is still the responsibility of the parties to pay the mediator’s  or the parent coordinator’s fees.
There are many reasons why it is often  (but not always)  better to resolve matters out of court.  One big reason is that it is often, in the long run, cheaper than a court process.  However it is important to note that with the exception of some services provided by Family Justice Counsellors in some communities, and a limited amount of mediation paid for in limited circumstances by Legal Aid, the parties, or one of them, will have to pay for the mediator, 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.  Supreme Court does have daily fees that the parties have to pay unless they qualify for indigent status, but there is no charge for the judge.  In Provincial Court there are no charges at all.  But even if mediation or parenting coordination is ordered by the court, it is still the responsibility of the parties to pay the mediator’s  or the parent coordinator’s fees.


This chapter discusses how family law problems can be resolved without going to court. It begins with a <span class="noglossary">brief</span> overview of the different alternatives to court, including parenting coordination, and the different ways that settlements and agreements can be recorded. It also <span class="noglossary">reviews</span> 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 alternatives: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].
This chapter discusses how family law problems can be resolved without going to court. It begins with a <span class="noglossary">brief</span> overview of the different alternatives to court, including parenting coordination, and the different ways that settlements and agreements can be recorded. It also <span class="noglossary">reviews</span> 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 alternatives: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].
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*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),
*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),
*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 collaborative settlement processes as dispute resolution processes to which the court can refer people (ss. 1 and 224),
*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
*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).
*allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court (s. 223).
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==Alternatives to court==
==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 collaborative processes are types of negotiation. Parenting coordination is a hybrid process that uses elements of mediation and elements of arbitration.
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===


Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and collaborative processes are nothing more than structured ways of handling this discussion; they are both processes of 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:
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:
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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.
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 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.
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 processes===
===Collaborative process===


Collaborative settlement processes are 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 find compromise and 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.
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:
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:
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*the [http://www.nocourt.ca Collaborative Law Group of Nelson]
*the [http://www.nocourt.ca Collaborative Law Group of Nelson]


For a quick introduction to how to start a 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 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===
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