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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)
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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 | 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. Judicial settlement conferences, 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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<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 Hyundai."</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 Hyundai."</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 a settlement | 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 that the deal was if people start remembering things differently. | ||
===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 divorce coaches to address the emotional and psychological issues | 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 divorce coaches to address the emotional and psychological issues related to the separation. Other specialists can be recruited to help with particular subjects, such as children's issues or complicated financial problems, as the need arises. | ||
There are collaborative practice groups all over British Columbia. More information about collaborative processes | There are collaborative practice groups all over British Columbia. More information about collaborative processes is available in the <span style="color: red;">collaborative processes</span> page and at the websites of <span style="color: red;">Collaborative Divorce Vancouver, Metro Vancouver's Collaborative Association, Victoria's Collaborative Family Law Group, and the Okanagan Collaborative Family Law Group</span>, among others. | ||
===Mediation=== | ===Mediation=== | ||
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Mediation is another kind of structured negotiation in which the parties attempt to arrive at a final 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. | Mediation is another kind of structured negotiation in which the parties attempt to arrive at a final 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 a settlement | 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. | ||
Some lawyers also work as mediators. Lawyers who work as mediators are called "family Law mediators" | 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 litigators and mediators. More information about the training requirements of family law mediators is available at the website of the <span style="color: red;">Law Society</span>. | ||
===Arbitration=== | ===Arbitration=== | ||
Arbitration is a decision-making process that's a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge | Arbitration is a decision-making process that's 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 parties 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, and there is no evidence and no formal rules of procedure. | 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, and there is no evidence and no formal rules of procedure. | ||
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Arbitration is governed by the ''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 ''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" | 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, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they are both litigators and arbitrators. More information about the training requirements of family law arbitrators is available at the website of the <span style="color: red;">Law Society</span>. | ||
===Using Mediation and Arbitration Together=== | ===Using Mediation and Arbitration Together=== | ||
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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 breaking an impasse, 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 "med/arb." | 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 breaking an impasse, 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 "med/arb." | ||
In a med/arb process, the parties | 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 phases. 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=== | ||
