Script 111 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses ways to resolve family law disputes without going to court.
How can you avoid going to court?
When a couple decides to separate, they’re often faced with a number of decisions. Where should the children live most of the time? What will the parenting schedule look like? Should support be paid, and if so to whom and in what amount? Who should stay in the family home? How will the property and debt be divided?
Many people believe that court is the only way to answer these questions. If the couple can work together, however, they may be able to avoid court altogether. Going to court is sometimes unavoidable, as might be the case if someone was threatening to hide property or take the children out of town. Apart from urgent problems like these, most family law disputes can be resolved out of court.
People who can work together despite their separation can try to negotiate a settlement between them. If this won’t work, the most common options other are:
- Collaborative settlement processes
What is “mediation”?
In mediation, you and the other party will work together to identify and resolve the problems arising from your separation with the help of a neutral third party, a mediator. Usually the mediator is a lawyer, psychologist or another trained professional. If you see a lawyer mediator (called a Family Law Mediator), he or she cannot offer individual legal advice, but will give you general information about family law.
The mediator listens to what’s important to both of you, asks for your opinions on the issues, and helps the two of you come to your own solutions about the future. If you have children, the mediator will help you make decisions that are best for them. The mediator won’t make decisions for you; the mediator helps you to make your own decisions.
How do you prepare for mediation?
Before you hire a mediator, you and your spouse may wish to meet separately with your own lawyers, who will tell you what to expect at the mediation and what documents you may need to take with you to the first session. Your lawyers will also help you gather those documents.
How much does mediation cost?
Mediation is usually a lot less expensive than going to court. When you first meet with a mediator, they will discuss the costs with you and your spouse. Mediators usually charge an hourly rate, and people usually split the mediator’s costs between them.
How long does mediation take?
Mediation meetings are normally two to six hours long. There is usually more than one meeting, depending on how many issues need to be resolved and how complicated those issues are. Sometimes the mediator will meet with one of you separately. The mediator may also give each of you additional tasks to be performed between meetings, usually to gather additional documents and information.
Who prepares the agreement?
When the mediator is a lawyer, the mediator will prepare a written agreement describing the settlement reached through mediation. When the mediator is not a lawyer, your lawyer will prepare the agreement. Regardless of who writes the agreement, you should get advice from a lawyer before you sign it. It is very important that you understand exactly what the agreement means and how it affects your legal rights and obligations.
What are “collaborative settlement processes”?
Collaborative processes are a kind of negotiation where you and the other party, along with your respective lawyers, agree to work together to resolve the problems arising from your separation without going to court. If it’s appropriate, you may hire other collaborative professionals, like divorce coaches, a child specialist or a financial specialist, to help you agree on parenting plans and negotiate child and spousal support issues. The collaborative process is centered on your needs and your children’s needs, and communications are open and transparent.
How long does a collaborative approach take to resolve matters?
More than one meeting will be required to come to an agreement on all issues. The number of meetings required will depend on how many issues need to be resolved and how complicated they are. Occasionally an agreement is reached after only one meeting involving the parties and their lawyers.
Is an agreement reached through mediation or collaboration binding?
Your agreement is a legal contract and binding on you and the other party. As a contract, the agreement can be enforced by the court.
Can the agreement be changed?
Separation agreements can only be changed if you and the other party agree or the court sets the agreement aside. If you agree to change the agreement or talk about changing the agreement, you and your spouse can go back to mediation or a collaborative process to discuss the potential changes. Alternatively, you can go to court. Although the court will generally be reluctant to change an agreement that was fairly negotiated, the court may make an order on different terms if there was an important change in circumstances after the agreement was signed that wasn’t expected when the agreement was negotiated.
When are mediation or collaborative processes not appropriate?
While these are very good ways of resolving family law issues, they may not be appropriate if there has been family violence or child abuse, or if the other party won’t participate fairly during the process.
How can you find a qualified and experienced mediator?
- For a Family Law Mediator, phone the Lawyer Referral Service at 604.687.3221 in Vancouver or 1.800.663.1919 toll-free elsewhere in BC. A Family Law Mediator is especially useful if one of your issues is dividing up the assets and property.
- Call Family Mediation Canada at 1.877.362.2005 (toll-free) and ask for a list of family mediators in your area. Their website is www.fmc.ca.
- Contact the Mediate BC Society, which maintains a list of family mediators. Call 1.888.713.0433 or click on www.mediatebc.com.
- Family Justice Counsellors may be able to help at no cost. Family Justice Counsellors typically help people with custody, access, guardianship or child support disputes in Provincial Court. Phone 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you. Also see the Family Justice website at www.ag.gov.bc.ca/family-justice.
How can you find a lawyer trained in collaborative settlement processes?
- Phone the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in BC.
- Visit BC Collaborative Roster Society’s website at www.bccollaborativerostersociety.com. You can search for collaborative lawyers or other collaborative professionals nearby.
- Visit Collaborative Divorce Vancouver’s website at www.collaborativedivorcebc.org for the name of a member lawyer, as well as for names of other collaborative professionals. All members of the association have received both collaborative family law and mediation training.
- In the lower mainland, visit Collaborative Association’s website at www.nocourt.net for more information and list of professionals.
- In Victoria, call 250.704.2600 or go to www.collaborativefamilylawgroup.com for information on the Collaborative Family Law Group of Victoria and the name of a member lawyer.
- In Kelowna and the Okanagan area, check the Okanagan Collaborative Family Law Group at www.collaborativefamilylaw.ca.
- In West Kootenays, call 1-866-926-1881 and visit www.resolutionplace.ca or www.nocourt.ca for more information on Resolution Place and the Collaborative Law Group of the Nelson.
What questions should you ask the mediator or collaborative lawyer?
When you have the names of some mediators or collaborative lawyers, you may want to ask each of them the following questions before deciding whom to hire:
- Does the person belong to any professional organizations for mediators or collaborative family law lawyers?
- Is the person a lawyer or a mental health professional?
- What kind of training has the person received, and how long have they practiced as a mediator or collaborative lawyer?
- What kinds of mediation or collaborative family law issues do they handle? (Some mediators, for example, may only deal with child custody and access disputes. If you want to mediate financial and/or property issues, you’ll want a Family Law Mediator who has training and experience in that field.)
- How much will it cost?
[updated March 2013]
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