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

|Related = [[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}}[[Family Law Arbitration|Arbitration]]{{·}}[[Parenting Coordination]]

|ChapterEditors = [[Sandy Thomson]] and [[Taryn Moore]]

This chapter discusses how family law problems can be resolved without going to court. It begins with a <span class="noglossary">brief</span> overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also <span class="noglossary">reviews</span> what can happen when someone has a change of heart after an agreement has been reached. The other sections of this chapter discuss in more detail the different options for resolving matters: [[Collaborative Processes|collaborative processes]], [[Family Law Mediation|mediation]], [[Family Law Arbitration|arbitration]], and [[Parenting Coordination|parenting coordination]].

The fundamental goal shared by all out-of-court options is to arrive at a settlement of the issues in dispute, particularly those that could have been fought about in court. As you might expect, reaching settlement can require 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 some accommodation of the other person's goals, wishes and expectations.

It is particularly important to negotiate a settlement when a couple has 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  <span class="noglossary">parent</span>-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]] in the chapter on Children. 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]] in the chapter Separation and Divorce.

This change in the ''Family Law Act'' has laid the groundwork for changing the how families interact with the court system. A pilot project was launched in May 2019 at the Victoria Provincial Court Registry that encourages parties to resolve matters by agreement. The [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution & Case Management Model] provides family case management earlier in the court process, and referring appropriate parties to either mediation or the collaborative process before appearing in court.

For a quick introduction on 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.

The collaborative process is 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 reach a settlement. The team can use counsellors to address the emotional and psychological issues related to the separation and to provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of the collaborative process is to arrive at a durable settlement that, as much as possible, meets both parties’ highest needs and goals. The idea is that by working together as a team, creative options can be explored for the benefit of the family.  

There are collaborative practice groups all over British Columbia. More information about collaborative processes is discussed in this chapter's section on [[Collaborative Processes]] and on the following websites:

For a quick introduction to how to start the 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.

Mediation is another kind of structured negotiation in which the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral <span class="noglossary">third party</span> who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find settlement that will work for both of them. 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 they reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, or in a consent order, 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''. 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 lawyers 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].

For a quick introduction to how to start mediation, see [[How Do I Start Mediation with My Spouse?]]. It's located in the ''How Do I?'' part of this resource, within the section Alternatives to Court. For more detailed information about the mediation process, see the [[Family Law Mediation]] section of this chapter.

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 requiring the other side to try mediation before getting into the courtroom. To find out how to use this 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.

Arbitration is governed by the provincial ''[http://canlii.ca/t/84gc 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." They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators <span class="noglossary">will</span> usually advertise that they provide arbitration services. More information about the training requirements of family law arbitrators is set out in the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/appendix-b-%E2%80%93-family-law-mediation,-arbitration-and/ Code of Professional Conduct] in Appendix B, and the Law Society's [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/part-3-%E2%80%93-protection-of-the-public/#d3 Rules] at Part 3, Division 3.

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.

In a med-arb process, the parties sign an agreement that commits them to the mediation process and describes what <span class="noglossary">will</span> happen if agreement can't be reached. The agreement should say whether the mediator <span class="noglossary">will</span> use information from the mediation phase to make decisions in the arbitration phase, and how other evidence <span class="noglossary">will</span> be presented in the arbitration phase. It's really important to understand what <span class="noglossary">will</span> trigger the end of mediation and the beginning of arbitration, and whether the mediator <span class="noglossary">will</span> have the power to make decisions as an arbitrator on all of the issues or just some of them.

More information about the training requirements of parenting coordinators is set out in the Law Society [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ ''Rules''], Part 3, Division 4. More information about parenting coordination is available at the website of the [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society].

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.

Generally, people will have to pay for their mediator, collaborative lawyer, arbitrator or parenting 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. This is the challenge with getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services to assist:

==Dispute resolution processes - thinking outside the box==

If you do see a mediator, arbitrator, parenting coordinator, or a lawyer for basic advice, you should expect to be asked questions about whether [[Family Violence Overview|family violence]] may be an issue during your relationship or separation. This is because of a particular concern that, if out-of-court processes are going to be used to resolve issues, both parties are participating freely and are able to make good decisions without fear for themselves or the children. If there has been family violence, it doesn't mean you may not use out-of-court dispute resolution but it is important that the mediator, arbitrator, parenting coordinator, and your lawyer are aware that it is a factor.

Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]].

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:

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 each 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 <span class="noglossary">will</span> want to re-open another issue.