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Difference between revisions of "Resolving Family Law Problems out of Court"
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Resolving Family Law Problems out of Court (view source)
Revision as of 12:34, 1 May 2013
, 12:34, 1 May 2013→Alternatives to court
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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 | 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. | ||
===Negotiation=== | ===Negotiation=== | ||
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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 processes of 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 processes of negotiation. | ||
Couples can negotiate between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference. 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: | ||
<blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote> | <blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche Boxster."</blockquote> | ||
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===Collaborative processes=== | ===Collaborative processes=== | ||
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 | 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. | ||
There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in the 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 the section on [[Collaborative Processes]] and on the following websites: | ||
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===Mediation=== | ===Mediation=== | ||
Mediation is another kind of structured negotiation in which the parties attempt to | 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 compromise. 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. | ||
If they reach a settlement, the terms of the deal can be set out in a consent order, in a separation agreement, or in minutes of settlement, depending on the circumstances and the preferences of the parties. | If they reach a settlement, the terms of the deal can be set out in a consent order, in a separation agreement, or in minutes of settlement, depending on the circumstances and the preferences of the parties. | ||
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===Arbitration=== | ===Arbitration=== | ||
Arbitration is a decision-making process that | Arbitration is a decision-making process that can be a lot like court. In arbitration, the parties hire an arbitrator to <span class="noglossary">act</span> as their personal judge. They agree that the arbitrator can make decisions about their dispute that they <span class="noglossary">will</span> 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, | 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 ''[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]]''. | Arbitration is governed by the ''[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 ten years and have additional training in arbitration, family violence | 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 <span class="noglossary">will</span> usually advertise that they are both litigators and arbitrators. More information about the training requirements of family law arbitrators is set out in the Law Society of BC's [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=Code-of-Professional-Conduct-for-British-Columbia-%E2%80%93-Table-of-Contents Code of Professional Conduct] in Appendix B, and [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Law Society 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''. | 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''. | ||
