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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 19:25, 5 January 2013
, 19:25, 5 January 2013no edit summary
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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 between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference. 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."</blockquote> | <blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche."</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>'''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 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 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. | 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. | ||
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===Collaborative Processes=== | ===Collaborative Processes=== | ||
Collaborative settlement processes are a kind of | 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 | There are collaborative practice groups all over British Columbia. More information about collaborative processes can be found 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=== | ||
Mediation is | 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 | 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 <span style="color: red;">Law Society</span>. | ||
===Arbitration=== | ===Arbitration=== | ||
Arbitration is a lot | 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 | 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 <span style="color: red;">Law Society</span>. | |||
===Mediation and Arbitration=== | |||
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=== | ||
Parenting coordination uses both mediation and arbitration, and is | 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 <span style="color: red;">Law Society</span>. More information about parenting coordination is available at the website of the <span style="color: red;">BC Parenting Coordinators Roster Society</span>. | |||
==Unbundling Dispute Resolution Processes== | |||
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==Formalizing a Settlement== | ==Formalizing a Settlement== | ||