Resolving Family Law Problems out of 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 very 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.

This chapter discusses how family law problems can be resolved without going to court. This page provides a brief description of the different alternatives to court, including parenting coordination, and the different ways that settlements and agreements can be recorded. It will also review what can happen when a party has a change of heart after an agreement has been reached.

Introduction

The fundamental goal shared by all alternatives to litigation is to arrive at a settlement of the issues in dispute, particularly those which could have been fought about in court. As you might expect, coming to this sort of settlement requires 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 an accommodation of the other person's goals, wishes and expectations.

Although it is not always possible to avoid court, such as when one or both people are so pig-headed that they can't or won't compromise their position or where a person must take urgent court action to stop something bad from happening, out-of-court alternatives always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends and are far less stressful and disruptive to the people involved and their children.

It is particularly important to negotiate a settlement when a couple have 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 the 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, and their 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 issues after a relationship has ended and how to put the children first in your dispute with the other parent, see the page Children > Parenting After Separation. 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 page Marriage & Divorce > Separating Emotionally.

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:

Pat: "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche."

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."

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."

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 is reached, 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 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 arising from parties' 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 can be found in the collaborative processes page and at the websites of Collaborative Divorce Vancouver, Metro Vancouver's Collaborative Association, Victoria's Collaborative Family Law Group, and the Okanagan Collaborative Family Law Group, among others.

Mediation

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 is reached, the terms of the deal can be set out in a consent order, 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" and 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 Law Society.

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 and 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 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" and have to have practiced 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 Law Society.

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 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 will sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should talk 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 issues or just some of them.

Parenting Coordination

Parenting coordination is a hybrid dispute resolution process that uses 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-focussed process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really is 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 twenty-four months. Lawyers who work as parenting coordinators have to have practiced 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 available at the website of the Law Society. More information about parenting coordination is available at the website of the BC Parenting Coordinators Roster Society.

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 which 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 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 obvious 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 which 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.

Formalizing a Settlement

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

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to get everyone to agree on what the terms of the oral agreement were, especially when a lot of time has passed since the oral agreement was made. When an agreement is written down, on the other hand, that record is usually all the court needs to see that there was a settlement. Notes scribbled on a napkin, for example, might constitute a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record an agreement.

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

Separation Agreements

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

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

Minutes of Settlement

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

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

Memoranda of Understanding

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

"I confirm that in our telephone conversation of earlier this afternoon, we agreed that Harjit would see the children on weekends, Suman would have the children's primary residence and that Harjit would pay child support to Suman in the amount of $326.00 per month." 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

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

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. Sometimes a separation agreement will require that certain terms of the agreement will be incorporated into a consent order if the parties intend to get a divorce.

An order made by consent is just as legally binding as any other sort of court order. In fact, sometimes consent orders are more binding, as orders made by consent are notoriously difficult to appeal or vary without proof of some sort of deception by the other side or a significant change of circumstances. Since consent orders represent an agreement between the parties, the parties will be presumed to have a thorough knowledge of their situation at the time of the order, a fair knowledge of their likely future circumstances, and an understanding of how the terms of the consent order are going to affect them now and in the future. "What," the court will ask, "has changed such that you can't live with the order you previously agreed to?"

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

Wait, I've changed my mind!

Generally speaking, is not alright 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 anything, changes depending on whether the agreement has already been reduced to writing.

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

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.

Varying separation agreements is discussed in more detail in the chapter Family Agreements > Making Changes, and varying orders is discussed in the sections Children, Child Support, Spousal Support and Family Assets.

Note that if you disagree with an order or a separation agreement and simply decide not to comply with the order or agreement, the other side will be able to go to court to enforce the terms of the order or agreement. In the case of a court order, you could 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 a binding agreement in the same way that separation agreements are enforceable.

The enforcement of orders and agreements is discussed in the chapter Other Family Issues > Enforcing Orders & 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. 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 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 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 both gave up something 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 other issues.

Finally, you should also consider whether the thing you want to change is worth losing your lawyer. If your lawyer was with you at the bargaining table and acted for you in negotiating the terms of your agreement, your lawyer is under a professional obligation not to continue acting for you if the agreement was made in good faith, in the absence of some deception by the other side. Your lawyer will have no choice but to quit, and you will have to hire a new lawyer.