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

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.

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.

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 from the [http://www.lawsociety.bc.ca/page.cfm?cid=1476&t=Family-Law-Mediators Law Society of BC's webpage on Family Law Mediators].

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.

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 set out in the [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=Code-of-Professional-Conduct-for-British-Columbia-%E2%80%93-Table-of-Contents Law Society of BC's 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.

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 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 is a hybrid dispute resolution process that relies on 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 practised 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.  

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.  

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 that 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.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes, and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of the agreement, especially when a lot of time has passed since the oral agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.

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

Separation agreements are discussed more in more detail in the chapter on [Family Agreements Agreements]] and the page on [[Separation Agreements]].

Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.

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. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order.  

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 a further agreement, put into writing and executed just like the original separation agreement, and are usually described as an "amending agreement." However, if the other side isn't prepared to change the agreement, 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 a significant flaw in how the agreement was reached or that there has been a serious 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 or that there was a significant flaw in how the agreement leading to the consent order was reached.

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 also 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.

* Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?

* 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 things up and compromised your positions 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 may have no choice but to quit, and you will have to hire a new lawyer.