Settling Your Family Law Dispute Outside Court
Despite the fact that the divorce rate in Canada hovers between 40% and 45%, most family law disputes settle outside of the court system. While only the Supreme Court of British Columbia can grant a divorce Order, the remaining issues that couples must deal with on marriage breakdown – custody, child support, spousal support, division of assets – can all be resolved outside of the court system.
There are a variety of ways to do this, collectively called “alternate dispute resolution”.
This article focuses on three types of alternate dispute resolution:
- Collaborative family law; and
- Parenting coordinators.
This is a process whereby the couple and their lawyers negotiate with the assistance of a neutral third party known as the mediator. Typically, where there are financial issues at stake, such as asset division and support, a lawyer trained in mediation is the best type of mediator to use. If the dispute is around parenting issues only, non-lawyer mediators may be of assistance, although any agreement reached in the process will usually be subject to each party getting independent legal advice. Unlike litigation, mediation gives each party a say in the solution. Parties are often able to reach agreements that are uniquely tailored to their needs and the needs of their children through this process. The mediator does not have the power to make decisions about issues in dispute; rather, he or she can only assist the parties in working through those issues, exploring common interests, and assisting the parties in making compromises in order to reach a deal.
Collaborative Family Law
This is a method of resolving family law disputes that is gaining traction in the Okanagan, and in other areas of the country. This process begins with the parties and their lawyers signing an agreement whereby they contract out of the court process. They commit to a resolution of their dispute through a series of four-way meetings and through the assistance of financial specialists, child specialists and divorce coaches/communication specialists. These “helping professionals” are all trained in their respective fields (i.e. – accounting or clinical counseling), as well as in the collaborative process. One of the unique aspects of the collaborative process is that the parties and their lawyers agree that if the process breaks down and one of the parties wants to withdraw and seek resolution through the courts, both parties must retain new lawyers. The rationale behind this is that the process involves true interest based negotiation, where both parties, their lawyers and the helping professionals explore solutions that are often beyond traditional court remedies.
By having this requirement, the participants, including the lawyers, are highly motivated to have the process succeed, and they are invested in finding solutions to the issues. The process requires mutual trust and cooperation, so it is important that the participants feel that they can be frank and honest, without the threat of the lawyer taking them to court if they do not reach a settlement.
“P.C.s”, as they are often referred to, are neutral professionals (typically lawyers or mental health professionals) who are hired by parents in high conflict custody cases. The role of the P.C. is to help parents resolve issues in dispute on a timely basis, with fewer costs than going to court. The P.C. cannot change a court Order. He or she can only provide the services that the court Order or written agreement stipulates. Typically, the issues referred to a P.C. are scheduling of visits, resolving disputes about holidays, activities, etc. The P.C. is able to meet with each parent, and with the children, and to get information from other people, such as teachers and counselors, to assist in the decision making process.
To discuss these matters, or the consequences of a breakdown of marriage or relationship, contact Pushor Mitchell Lawyers.