Being familiar with the main dispute resolution options available to people who are in the process of separating and divorcing in British Columbia will help you guide your patients through these difficult times more knowledgeably.
Family physicians are often caught in the middle of families embroiled in divorce proceedings. It can be difficult to negotiate between warring spouses, especially if both are your patients. The ultimate goal is to have a balanced outcome meeting the needs of all the parties involved, particularly the children. Family physicians are very familiar with the emotions and physical symptoms that reflect the trauma of divorce, but what they may not be as familiar with is the labyrinth of legal procedures available to divorcing couples.
The options open to families in the midst of a divorce include collaborative law, mediation, negotiation, or litigation. If one process is not moving toward settlement, another can be tried. The Table is a quick reference for patients as they commence seeking information and services.
Collaborative law is a voluntary process where the disputants and their lawyers agree to work together to reach outcomes that meet the interests of the disputants. They enter into a participation agreement that stipulates that they will not go to court while they are in the collaborative law process.
There are other professionals who are part of the collaborative law team. They are included as needed on a case-by-case basis. Collaborative coaches are mental health professionals who have expertise in the family dynamics of separation and divorce. Each disputant works with an individual coach to address emotional issues. Child specialists are mental health professionals with training in child development. They are neutral people who work with both parents to meet their children’s needs. Financial specialists are financial planners with specialized training in issues that arise on separation and divorce. They are also neutral. Their role is to provide information about the financial consequences and the long-term implications of decisions.
The contractual commitment not to litigate is controversial. Disputants who make this commitment are faced with hiring new lawyers should they fail to resolve their family law matter and decide to litigate. This has financial implications for clients and lawyers. It acts as a strong hook to keep disputants committed to reaching resolutions through the inevitable moments of frustration, fear, and impasse that the collaborative professionals are trained to work through.
The involvement of lawyers throughout the process tends to address power imbalances. For this reason, even couples in mild to moderately abusive relationships are candidates for collaborative law. Disputants also require financial resources. At the same time, legal costs can be reduced when coaches, child specialists, and financial specialists are used effectively. Couples whose goal is to cooperatively parent their children after separation should consider collaborative law.
Mediation is a voluntary process where the disputants work with a mediator in a confidential setting to reach a settlement that meets their interests. The mediator does not make decisions; at all times, the disputants reach resolution consensually. Therefore, detailed and creative solutions are common outcomes.
There are two family mediation models in British Columbia: mediator and clients only (MO), and mediator and clients with both lawyers (ML).
In the MO model, clients meet with the mediator several times for 2- to 3-hour-long meetings over a series of weeks or months. Lawyers are involved peripherally to give advice between meetings or to review the draft separation agreement.
In the ML model, clients attend mediation with their lawyers. These meetings tend to last all day. When the case is complex, or there are entrenched emotions, several days of mediation may be required.
Most family mediators hold separate meetings, known as preliminary conferences, with each client prior to the first joint mediation meeting. Preliminary conferences allow mediators to:
• Address procedural anxieties that disputants may have.
• Describe the mediation process.
• Suggest steps that disputants can take to prepare for mediation.
• Consider safety issues.
There are significant differences among mediators concerning training, regulation, and the extent of competence. Only lawyer-mediators are subject to mandatory regulatory provisions. Lawyer-mediators may draft the separation agreement or prepare a joint claim for divorce. Family justice counselors provide free parenting plan and child support mediation services. Some mediators, including family justice counselors and lawyer-mediators, have obtained certification with Family Mediation Canada.
Mediation works best when the disputants are committed to settling their family law matter outside the court. Ideally, there is no spousal abuse. It is important that each mediation participant feels safe. The ML model can be used to address concerns about power imbalance. Mediation tends to be the least expensive dispute resolution process available to spouses who are separating. Like collaborative law, mediation is an alternative to litigation. The nature of the litigation process—persuading a judge that you are right and the other person is wrong—tends to undermine relationships. For this reason, families benefit when separating spouses use mediation or collaborative law. For an extensive discussion about family law in British Columbia and alternatives to court, go to www.bcfamilylawresource.com.
Collaborative law and mediation are formalized processes of negotiation. Typically, there is some informal negotiation that occurs between spouses. Most litigation lawyers try to reach a settlement by negotiating. Four-way meetings between both lawyers and both spouses are one of the many ways to negotiate. Lawyers may also negotiate without clients present, through letters, e-mails, and telephone contacts. When lawyers take responsibility for the process of negotiation there is a risk that clients may become detached from their family law matter and the actual details of settlement. Negotiation can be very effective for clients who are depressed or otherwise unable to negotiate directly with the other disputant.
Fewer than 5% of family law actions that are commenced go to trial. Most are settled at some point during the litigation process. Litigation is the only alternative when couples are unable to agree. It may also be called for when there is current physical or sexual abuse or when a spouse is hiding assets or not fully disclosing financial information. Negotiation is always available during the litigation process. Intense anger and hurt focused on the other spouse is one of the reasons that people litigate. These powerful emotions often decrease with the passage of time. Mediation can be used effectively at this point.
The Supreme Court is supportive of couples who try to reach settlement without trial. In fact, all British Columbia couples involved in family litigation are now required to attend a judicial case conference4 during which judges explore the possibility of a voluntary settlement with the disputants and their lawyers. Frequently, couples are able to reach a full or partial settlement at this early stage.
The suitability of litigation, negotiation, mediation, or collaborative law for a particular couple in the process of separation or divorce changes over time. If one process is not moving toward settlement, another should be tried.
1. International Academy of Collaborative Professionals.www.collaborativepractice.com (accessed 23 October 2006).
2. Law Society of British Columbia. Professional Conduct Handbook, Appendix 2, Family Law Mediation.
3. Family Mediation Canada Certification Program. www.fmc.ca/index.php?page=12, (accessed 24 October 2006).
4. Court Rules Act, Supreme Court Rules, BC Reg 221/90, as amended, Rule 60E(1), Family Law Proceeding—Judicial Case Conferences.
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