Alternatives to Court

Family law mediation

Many alternatives to going to court are available if you have a family law problem. Depending on your circumstances, you may never need to experience the stress of having your case heard in a courtroom.

Almost every issue a couple faces when their relationship breaks down can be resolved without litigation — as long as both parties are open to negotiation and each is flexible enough to find compromise. The only thing you technically must go to court for is a divorce order.

This page provides a brief description of the different alternatives to court, including parenting coordination, and the different ways that settlements and agreements can be documented. It also looks at what can happen when a party has a change of heart after an agreement has been reached.

I. Introduction

The fundamental goal shared by these litigation alternatives is to arrive at a settlement of the issues in dispute between parties. We’re especially interested in matters for which there is usually a high chance of a court battle.

As you might expect, coming to an out-of-court agreement requires certain degrees of flexibility and maturity. Most importantly, each party must understand that he or she is not going to get everything wanted.

Whatever a person’s wish list may be going into negotiations, the final outcome inevitably is a compromise and an accommodation of the other party’s goals and expectations.

Avoiding court is not always possible — such as when one or both people are so stubborn that they won’t or can’t compromise their position. Another example is where a party must take urgent court action to restrain the other from an action.

But out-of-court alternatives always offer a cheaper, friendlier resolution after the breakdown of a relationship. They are far less stressful and disruptive to the parties, not to mention any children and others in their lives.

Negotiating a settlement is especially important when a child or children are involved. If there are no children, a couple can just walk away from their relationship. They can simply have nothing more to do with one another for the rest of their lives.

With a child or children in the picture, a couple should expect to be involved with each other — whether they like it or not — for many years into the future. Both parents may want to be at the child’s high school graduation for example. Both might want to attend parent-teacher meetings, school concerts and sports days. The child may want both parents to be at such moments too.

However tense or awkward a relationship may be, parents are involved in each other’s lives until one passes or their child predeceases them. So maintaining a functioning relationship is important and negotiation gives the best chance of achieving that.

A. Negotiation

Negotiation is a cooperative effort to resolve a dispute through offers and discussion. Mediation, arbitration and collaborative law are structured ways of handling the discussion; they are negotiation processes.

Parties can negotiate between themselves, with the help of lawyers, or with the help of a judge or court registrar at a settlement conference. Negotiation might can be like this:

Chris: “I’ll give you 55% of the house sale proceeds if you’ll let me keep my SUV.”

Taylor: “Look, 55% sounds good, but I need compensation for my interest in the vehicle. Why not give me 60% of the property and half of your antique collection.”

Chris: “You know how important those antiques are to me. Let me keep them. I’ll give you 60% of the house, and I’ll sell the SUV and give you 50% of what I get for it. Plus, I’ll let you keep your car.”

In successful negotiation, each person gives a little and takes a little. The hope is, at the end of the day, parties come to an agreement on the issues that have cropped up. When a settlement is reached, the parties almost always put the agreement in written form.

B. Mediation

Mediation is a negotiation where the parties try to arrive at an agreement with the help of a neutral third-party. A mediator is a person who helps the parties find compromise and agree to terms.

The goal of mediation is to arrive at a settlement on some or all of the issues in dispute, with both parties as happy as possible. Terms of settlement can be set out in documents such as a consent order, a separation agreement or in minutes of settlement. The exact forms depends on the circumstances and preferences of the parties.

Some lawyers are “family law mediators,” meaning they have practiced law full-time for at least three years and are trained in mediation. Lawyers who also act as family law mediators usually advertise their dual roles. More info on family law mediators is available at the Law Society website.

C. Arbitration

Arbitration can be thought of as hiring your own personal judge. They make a decision about your case without everyone having to go to court.

  • The parties hire a person they both agree will act as their arbitrator.
  • They also agree that the arbitrator will have the authority to impose a resolution upon their dispute.

Arbitration is much more formal than mediation. The process is actually much like a court process. Each party presents their evidence, puts forward an argument and tries to persuade the arbitrator of their position. Mediation, on the other hand, is often conversational.

Arbitration is just as effective to resolve family law disputes as any other dispute resolution process. Arbitration in British Columbia is governed under the Commercial Arbitration Act.

D. Parenting Coordination

Parenting coordination uses both mediation and arbitration, and is generally only used when parents have reached a final resolution of the issues in dispute, whether this final resolution is reached through negotiation or litigation. Parenting coordination helps parents implement terms of the resolution concerning their children.

The parenting coordinator is a family law lawyer or a mental health professional whom the parents hire on a long-term basis, usually for six to twelve months. Parenting coordination is only useful for parents who, despite the formal resolution of their issues, always find themselves fighting about those issues.

In the parenting coordination process, parents hire a parenting coordinator and sign an agreement outlining (a) their rights and responsibilities to each other and (b) the scope of the parenting coordinator’s services and authority. When a problem crops up, a parent will contact the parenting coordinator to address the problem.

  • First, the parenting coordinator will try to work out a solution through mediation and try and find consensus between the parents.
  • If that doesn’t work, the parenting coordinator will impose a resolution in his or her capacity as the parents’ arbitrator.

More info on parenting coordination is available from the BC Parenting Coordinators Roster Society.

E. Collaborative Processes

Collaborative settlement processes are negotiation process in which the parties and their lawyers sign an agreement not to go to court and work together as a team to find settlement.

The team uses divorce coaches to address the emotional and psychological issues arising from parties’ separation, and the team may recruit specialists to help with particular subjects, such as children’s issues or complicated financial problems, as the need arises.

There are a collaborative law practice groups all over British Columbia. More information about collaborative law can be found at the websites of Collaborative Divorce Vancouver, Metro Vancouver’s Collaborative Association, Victoria’s Collaborative Family Law Group, and the Okanagan Collaborative Family Law Group, among others.

II. Formalizing a Settlement

It is always best to write out the terms of settlement when a settlement as been reached. Writing the agreement out gives everyone a written record of their agreement which they can refer to if there’s a dispute about the agreement down the road.

Although it’s true that oral agreements are just as binding as written agreements, it can be very difficult to get everyone to agree on what the terms of the oral agreement were, especially when a lot of time has passed since the oral agreement was made.

When an agreement is written down, on the other hand, that record is usually all the court needs to see that there was a settlement. Notes scribbled on a napkin, for example, might constitute a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record an agreement.

Lawyers and mediators try to record a settlement as clearly and comprehensively as possible. They usually document the settlement in a separation agreement, memorandum of understanding, minutes of settlement or consent order.

A. Separation Agreements

A separation agreement is a contract entered into after the breakdown of a relationship. The terms of the contract are the product of negotiation between the parties and sometimes their lawyers, and may deal with all or just some of the issues between the parties.

Unlike an commercial contract, a separation agreement usually also provides a guide to how the parties will deal with each other after the agreement is executed. A separation agreement can be created to avoid an action in court, and can be signed even after litigation has started.

Separation agreements are discussed more in more detail in Family Agreements > Separation Agreements.

B. Minutes of Settlement

Minutes of settlement are a record of the settlement of the various claims made in an action, on terms agreed to through negotiation. They are a rough and ready outline of the parties’ agreement, an agreement often reached at the end of a long negotiation session or on the steps of the courthouse.

Typically, minutes of settlement are little more than an outline of the points agreed to, usually on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are signed by the parties and are their lawyers shortly after they are drawn up. The terms of the minutes are usually used to draft a consent order or lay the foundation for a more detailed separation agreement.

When minutes are used to write a consent order, they are usually attached to the order. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without the consent order being entered in court.

C. Memoranda of Understanding

A memorandum of understanding describes the terms on which a dispute has been settled. Memoranda are less formal than minutes of settlement, and may not be signed by all parties and legal representatives. A memo may even be in the form of a letter sent by one of the lawyers:

“I confirm that in our conversation of earlier this afternoon, we agreed that Chris would see the children on weekends, Taylor would have the children’s primary residence and that Chris would pay child support to Taylor in the amount of $450.00 per calendar month.”

Memoranda of understanding can be enforced by the courts on their own. However, they are almost always put into a more formal document later on — either as a consent order or separation agreement.

D. Consent Orders

Orders “going by consent” are orders that parties have agreed they will ask the court to make. They are intended to incorporate the terms of an temporary or permanent agreement between the parties, on some or all of the issues, after litigation has started. The terms of the agreement are “made official” by having a judge make an order on the terms of the settlement.

Sometimes, parties reach an agreement before an action has started and want to put the agreement in the form of a court order rather than as a separation agreement. Sometimes a separation agreement will require that certain terms of the agreement will be incorporated into a consent order if the parties intend to get a divorce.

An order made by consent is just as legally binding as any other sort of court order. In fact, sometimes consent orders are more binding, as orders made by consent are notoriously difficult to appeal or vary without proof of some sort of deception by the other side or a significant change of circumstances.

Consent orders represent an agreement between the parties. So the parties will be presumed to have a thorough knowledge of their situation at the time of the order, a fair knowledge of their likely future circumstances, and an understanding of how the terms of the consent order are going to affect them now and in the future. “What,” the court may ask, “has changed such that you can’t continue with the order you previously agreed?”

Be cautious when agreeing to a court order. While it is always open to the court to vary an order respecting children and sometimes spousal support if there has been a meaningful and unexpected change in circumstances, the property provisions of a consent order are rarely varied. Make sure you understand and can live with what you’ve agreed to!

III. Wait, I’ve changed my mind!

Generally speaking, is not alright to change your mind after you’ve come to a settlement, especially right after you’ve reached the settlement. What you can do about it, if anything, changes depending on whether the agreement has already been reduced to writing.

A. After the Agreement has been Formalized

If you change your mind after a separation agreement has been signed, you can attempt to negotiate an amendment to the terms. Amendments are considered a further agreement that must be put into writing and executed as with the original separation agreement.

If the other side is unwilling to agree to the change, you have little choice but to go to court and ask the judge to make an order along the lines of what you want. But be warned. Gaining a variation is very difficult unless you can show that (a) the agreement was reached in a highly flawed manner or (b) there has since been a meaningful and unexpected change in circumstances.

You cannot ask the court to make an order different from the agreement just because you regret the exact terms or how much you gave away. A compelling reason must exist for why the court should do something different to what was legitimately agreed.

If you have a change of mind after a consent order has been pronounced, you face the same exact problem. You can try to negotiate a new order varying the consent order. This is presented to the court also by consent in the same manner as the original consent order. Failing that, you need to apply to court to change the original order. You must prove that there has been a meaningful and unexpected change in circumstances.

Note that, if you disagree with an order or a separation agreement and fail to comply, the other party can to go to court to enforce the terms of the order or agreement. For a court order, you could be faced with an application that you be found in contempt of court. Contempt is punishable by jail time, a fine, or a combination of both.

Note also that settlement minutes and memoranda of understanding may be enforced as a binding agreement in the same way that separation agreements are enforceable.

B. Before the Agreement has been Formalized

People sometimes have a change of mind between the time a deal is struck and when the agreement is to be put into the form of a consent order or separation agreement.

In such circumstances, you have two options: (a) live with the agreement or (b) attempt to get the other side to agree to a change.

You must really think before bringing your issue to the other party. An attempt to renegotiate the deal can result in an opening of negotiations on parts of the agreement you don’t want changed. As well, the agreement that you struck may be enforceable on an interim basis, before it is put into the form of a separation agreement or court order.

Here are some issues to consider.

  • Is the aspect you want to change something you can actually live with? Is changing that one element worth the risk of losing the settlement?
  • Is it worth the legal fees to go back into the negotiation process and draft a new agreement?
  • Is it worth the risk of losing other aspects of the settlement that you’re happy with but that the other side may want changed?
  • Is it worth the risk that the other side will begin court action to enforce the agreement? Legal costs will mount in defending against such an action.

Remember that negotiation is a process of give and take. Almost inevitably, you will be unhappy with some aspects of the agreement, just as the other party is going to be displeased with other aspects.

The two of you both needed to give up something to reach settlement. Hence, 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. This is after all the anxiety of the negotiation and the pain of settling on hard-fought points.

Finally, you might also consider whether the part you want to change is worth losing your lawyer. Your legal representative was with you at the bargaining table and acted for you in negotiating the terms of your agreement. That means they under a professional obligation to discontinue acting for you if the agreement was made in good faith, in the absence of some deception by the other party. Your lawyer will have no choice but to quit, forcing you to have to hire a new lawyer.