Out-of-Court Options: Part 1

While separation and divorce inevitably involve some degree of pain, the process of separation need not be “a fight to the bitter end.”  In fact, other than in exceptional circumstances, going to court ought to be a last resort, for many reasons:

  • Having worked as a judicial clerk in BC Supreme Court and a student intern in BC Provincial Court, I am keenly aware that although judges attempt to make thoughtful and fair decisions, many have no family law experience and find the emotional aspect of family cases very taxing.
  • Given the nature of our justice system, you may find yourself (or your lawyer) explaining your situation to a different judge every time you step foot in the courthouse.
  • You may think you have a “slam dunk” case, but depending on which judge is assigned to your matter and how the evidence goes in, there are no guarantees.
  • You will be leaving very personal decisions related to your children, property and/or future income sources (support) to a stranger, based on limited information.
  • And finally, even if you “win” at trial, your family’s financial resources will have been depleted and your relationship with your former spouse may now be so unhealthy and adversarial that you suffer years of continued conflict.

Settlement processes such as mediation, collaborative law, arbitration and negotiation are less costly, less adversarial and provide the best chance of maintaining an amicable relationship with your former spouse or partner.  What are some options you should consider before running down to the courthouse? In this first of a two-part post on out-of-court family law processes, I offer three:

1.     A Kitchen Table Agreement

Where healthy communication is possible and both you and your former partner can negotiate what is in your best interests (and those of your children, if you have them), this is the most cost-effective option.

However:

  • Consider your situation and move your discussions to a public coffee shop or have a friend nearby if there is any danger of a conversation breaking down into bullying, yelling or violence.
  • Avoid “cutting and pasting” an agreement you find online or borrow from a friend since, once you sign an agreement, it is binding and can be enforced by the court.
  • Obtain legal advice before you sign any agreement.  Even better, retain a lawyer to draft a separation agreement based on your “kitchen table” discussions.  While obtaining a “quick fix” by creating your own agreement may be enticing, being informed about your rights and obligations by a family lawyer and paying for a correctly drafted separation agreement will save you from complications and costs down the road.

2.     Mediation

Family justice counsellors, mediators and lawyers with additional training can help people resolve family law disputes through mediation.  A mediator does not make decisions for you nor impose settlements, but instead helps you and your former spouse reach your own settlement by guiding the discussion as a neutral party.  Some things to keep in mind if you are considering mediation:

  • Both of you must be able to compromise for mediation to be successful.
  • If you attend mediation without a lawyer, there is nothing wrong with stating that you wish to review the final agreement with a lawyer before signing it.
  • You can also choose to hire a lawyer just to attend a mediation with you (except if using a family justice counsellor) to ensure you have legal advice along the way.

3.     Negotiating with the Help of Lawyers

The vast majority of family law cases settle outside of court.  A lawyer can help walk you through the breakdown of a relationship by providing you with information and advice.  If both you and your former spouse have counsel, it is often possible to resolve issues through letters or phone calls between the lawyers or a “four-way settlement meeting” where you, your former partner, and your respective counsel sit down and negotiate a settlement agreement.

When making a decision about which out-of-court process to pursue, consider what will likely be most effective in your family’s particular circumstances.  Discuss these options with your former spouse, or have your lawyer send information to them on a process that makes sense to you.  But be flexible.  These out-of-court processes do take two willing people who desire to move ahead despite the pain.

Watch for the final post in this series, which will consider three additional out-of-court options: collaborative law, arbitration, and parenting coordinators.

(This post was adapted from a fact sheet originally written by Rebecca Stanley for the People’s Law School).  

Have questions about a family law issue? Contact us.

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