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There are many alternatives to going to court if you have a family law problem. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom. Almost very issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are open to negotiation and each is flexible enough to find compromise. The only thing you must go to court for is a divorce order.
This chapter provides a brief description of the different alternatives to court, including parenting coordination, and the different ways that settlements and agreements can be recorded. It will also review what can happen when a party has a change of heart after an agreement has been reached.
I. Introduction
The fundamental goal shared by all alternatives to the litigation process is arriving at a settlement of the issues in dispute between the parties, particularly those which could have been fought about in court. As you might expect, coming to this sort of agreement requires a certain amount of flexibility and maturity. Most importantly, the parties 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 an accommodation of the other party's own goals, wishes and expectations.
Although it is not always possible to avoid court, such as when one or both people are so pig-headed that they won't or can't compromise their position or where a party must take urgent court action to restrain the other from doing something, out-of-court alternatives always offer a cheaper, friendlier resolution to the breakdown of a relationship and are far less stressful and disruptive to the parties and to their children.
It is especially important to negotiate a settlement when children are involved. 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. Where there are children, however, 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 will want to be at the child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days, and the child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until 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 issues after a relationship has ended and how to put the children first in your dispute with the other parent, see the chapter Children > Parenting After Separation. For more information about the emotional issues that come with the end of a long-term relationship and how to keep those issues from hopelessly complicating your dispute, see the chapter Marriage & Divorce > Separating Emotionally.
A. Negotiation
Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation, arbitration and collaborative law are nothing more than structured ways of handling this discussion; they are processes of negotiation.
Couples can negotiate between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference. Negotiation boils down to this:
Pat: "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche."
Sandy: "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."
Pat: "You know how important my hockey card collection is to me. Let me keep my hockey cards, I'll give you 60% of the house, and I'll sell the Porsche and give you 70% of what I get for it. Plus, I'll let you keep your Hyundai."
In negotiation, each person gives a little and takes a little, all in the hope that at the end of the day they'll be able to come to an agreement on all of the issues that have cropped up because of the end of their relationship. If a settlement is reached, the parties almost always put the agreement in some written form.
B. Mediation
Mediation is a cooperative negotiation process in which the parties attempt to arrive at a final agreement with the help of a neutral, third-party mediator. A mediator is a person who helps the parties through the process and find compromise.
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. The terms of settlement can be set out in a consent order, a separation agreement or in minutes of settlement, depending on the circumstances and the preferences of the parties.
Some lawyers, like the author, are also "family Law mediators," which means that they have practiced law full-time for at least three years and received training in mediation. Lawyers who are also family law mediators will usually advertise that they are both litigators and mediators. More information about family law mediators is available at the Law Society's website.
C. Arbitration
Arbitration is a bit like hiring your own personal judge and having a decision made about your case without having to go to court. In the arbitration process, the parties hire a person they both agree will act as their arbitrator, and they agree that the arbitrator will have the authority to impose a resolution upon their dispute.
Arbitration is a lot more formal than mediation, as the process is very much like the court process. Each party presents evidence, makes an argument and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation.
Arbitration in British Columbia is governed by the Commercial Arbitration Act. Although the act says that using arbitration cannot stop the court from deciding the issues in dispute under the Family Relations Act and the Divorce Act, the reality is that no family law process can ever oust the jurisdiction of the court. Arbitration is just as effective to resolve family law disputes as any other dispute resoution process.
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, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, a parent will contact the parenting coordinator and the parenting coordinator will 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 information about parenting coordination is available at the website of the BC Parenting Coordinators Roster Society.
E. Collaborative Law
Collaborative law is a mediation 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.
Back to the top of this chapter.
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 always make a tremendous effort to record a settlement as clearly and comprehensively as possible, and will usually put the settlement in the form of a separation agreement, a memorandum of understanding, minutes of settlement or a 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 the chapter 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 for a consent order, they are usually attached to the back of 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 even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers:
"I confirm that in our telephone conversation of earlier this afternoon, we agreed that Harjit would see the children on weekends, Suman would have the children's primary residence and that Harjit would pay child support to Suman in the amount of $326.00 per month."
While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a 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 will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of 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. Since consent orders represent an agreement between the parties, 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 will ask, "has changed such that you can't live with the order you previously agreed to?"
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!
Back to the top of this chapter.
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 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. Amendments are are further agreement, put into writing and executed just like the original separation agreement. If the other side isn't prepared to agree to the change, 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 will be very difficult unless you can show that there was significant flaw in how the agreement was reached or that there has been a meaningful 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.
If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made.
Varying separation agreements is discussed in more detail in the chapter Family Agreements > Making Changes, and varying orders is discussed in the sections Children, Child Support, Spousal Support and Family Assets.
Note that if you disagree with an order or a separation agreement and simply decide not to comply with the order or agreement, the other side will be able to go to court to enforce the terms of the order or agreement. In the case of a court order, you could be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as a binding agreement in the same way that separation agreements are enforceable.
The enforcement of orders and agreements is discussed in the chapter Other Family Issues > Enforcing Orders & Agreements.
B. Before the Agreement has been Formalized
People sometimes have a change of heart between the time the deal is struck and the time the agreement is put into the form of a consent order or a separation agreement.
If this happens, you have two options: live with the agreement; or, attempt to get the other side to agree to change the agreement. 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.
Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
Is it worth the additional legal fees it will cost to go back into the negotiation process and draft a new agreement?
Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?
Is it worth the risk that the other side will start a court action to enforce the agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?
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 both gave up something 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 will want to re-open other issues.
Finally, you should also consider whether the thing you want to change is worth losing your lawyer. If your lawyer was with you at the bargaining table and acted for you in negotiating the terms of your agreement, your lawyer is under a professional obligation not to continue acting for you if the agreement was made in good faith, in the absence of some deception by the other side. Your lawyer will have no choice but to quit, and you will have to hire a new lawyer.


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