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

There are many reasons why it is often  (but not always)  better to resolve matters out of Court.  One big reason is that it is often, in the long run, cheaper than a Court process.  However it is important to note that with the exception of some services provided by Family Justice Counsellors in some communities, and a limited amount of mediation paid for in limited circumstances by Legal Aid, Out-Of –Court Resolutions are  “private pay”.  The parties, or one of them, will have to pay for the mediator, arbitrator or parent coordinator.  Sometimes these specialists charge on a sliding scale, but often those fees will be in the neighbourhood of $200-$400 per hour and up.  They will usually require significant retainers in advance .  Supreme Court does have daily fees that the parties have to pay unless they qualify for indigent status, but there is no charge for the Judge.  In Provincial Court there are no charges at all.  But even if Mediation or Parent Coordination is ordered by the Court, it is still the responsibility of the parties to pay the mediator’s  or the parent coordinator’s fees.

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 <span class="noglossary">will</span> want to be at their child's high school graduation, both <span class="noglossary">will</span> want to attend parent-teacher meetings, and both <span class="noglossary">will</span> want to go to school concerts and sports days. The child <span class="noglossary">will</span> want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they <span class="noglossary">will</span> 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 after a relationship has ended and how to put the children first in your dispute with the other parent, see the section on [[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 section on [[Separating Emotionally]].

According to the Ministry of Justice's [http://www.ag.gov.bc.ca/legislation/family-law/pdf/part2.pdf guide to the ''Family Law Act''], the provincial ''[[Family Law Act]]'' was written to encourage people to resolve family law problems other than through court:

The act supports the resolution of family law disputes out of court by:

The act also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:

For a quick introduction to how to start negotiations, see [[How Do I Start Negotiations 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 a collaborative process, see [[How Do I Start a Collaborative Settlement Process with My Spouse?]] It's located in the ''How Do I?'' part of this resource, within the section ''Alternatives to Court''.

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 <span class="noglossary">will</span> usually advertise that they are both litigators and mediators. More information about the training requirements of family law mediators is available from the Law Society of British Columbia's page on [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/your-practice/areas-of-practice/family-law-alternate-dispute-resolution-accreditat/ Family Law Mediators].

The general rule is that Mediation is a voluntary process. There is one exception to that rule.  If you and your spouse are already parties to an action in the Supreme Court, the ''[http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation]'' provides a mechanism for forcing the other side to try mediation before getting into the courtroom. To find out how to use the regulation see [http://bcfamilylawresource.blogspot.ca/2014/01/lets-mediate-primer-on-notice-to.html JP Boyd on Family Law the Blog] for the procedure involved and for other ways to start mediation see [[How Do I Start Mediation with My Spouse?]]  It's located in the ''[[JP Boyd on Family Law — How Do I? | How Do I?]]'' part of this resource.

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''.

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 <span class="noglossary">will</span> 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."

 

To find out more about parenting coordinators, see [[How Do I Hire a Parenting Coordinator?]] It's located in the ''How Do I?'' part of this resource, within the section ''Alternatives to Court''.

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. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an "amending agreement" or an "addendum agreement," or something similar. 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 may 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.