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Process Options for Family Law

Certain family law disputes will only be able to be resolved by going to court and asking a judge to decide, however, such issues are in the minority, and most issues can be resolved by way of an agreement between the parties achieved through negotiation. Beyond court, there are a number of other “process options” available to clients seeking to negotiate a resolution to their family law matters, and these include: Collaborative Family Law, Mediation and Supported Self-Negotiation.

While no process can be right for everyone, we encourage you learn as much as you can about the various process options open to you before you select your lawyer and this article is designed to provide you with some preliminary information to help assist you in that regard. We encourage you to think carefully about what type of process is right for you, because this could be one of the most important decisions that you make for you and your children’s futures.

Statistics tells us that over 95% of the family law cases filed with courts settle prior to trial. Most experienced family law lawyers and judges will tell you that courts are not ideally suited for the task of restructuring families and assisting them with the transition from one household into two.

In a court process, the intimate (and normally private) details of a couple’s finances and other matters are presented to a judge (or Master) who makes life-altering decisions based upon the law, and upon the necessarily limited amount of factual information that can be presented in the time available. The judges are guided by the arguments made by the lawyers, but in many cases, the law is not entirely clear, and it may not specifically fit your family’s unique circumstances. Therefore, the outcome is often uncertain and unpredictable. Court proceedings are also very expensive, often so expensive that often no one really “wins”. Even if a financial “win” can be achieved, the pain and resentment caused by going through the adversarial legal process can contribute to future problems, such as the need to seek enforcement of the order, or the desire to appeal the order, or to seek a variation to it.

If this is correct, then why do many lawyers tend to automatically recommend commencing an adversarial process right at the outset? This is primarily due to the way that lawyers are traditionally trained, and the fact that the Canadian legal process is based on an adversarial model. The theory behind an adversarial model is that the truth can be discovered by a neutral judge or jury if both sides make their most vociferous arguments. Much of the work that divorce lawyers have traditionally performed consists of preparing to go to court or to trial — even though trial may be statistically unlikely — and preparing and arguing court motions and making legal arguments. Many lawyers also lack any formal training in mediation or other alternative dispute resolution processes, so they tend to automatically stake out positions and posture as they have been trained to do in law school and adversarial practice.

Rather than having a third party stranger (a judge) make what may be some of the most important decisions in your life, many separating clients are opting to make their own family law decisions. This is promising because separating couples are usually capable of making better decisions than a judge could ever make, due to the limited time that is available to the judge in trying to understand the separating couple’s family and its unique issues.

When family law clients reach agreements that best suit their own values, goals, and needs, the resolutions are not just better, but they also tend to be more durable. They are more durable in the sense that they are respected by the parties into the future, and therefore, they do not require enforcement by the courts. A durable resolution is in everyone’s best interest because it reduces the likelihood of the need for future legal services.

The process options that are available to clients to resolve family law issues are further described below.

Court

The traditional court based model is likely best suited for high-conflict divorces, where there is very little trust between the parties, or where there has been significant physical abuse, or there is a power imbalance that cannot be otherwise adequately addressed. Court is also a better forum if one or both of the parties is focused on revenge, or if one or both of the parties is acting in bad faith, or where there is other counterproductive behaviour. Court can also be necessary where there are substance abuse or mental health issues that will significantly impede a party’s ability to reach an agreement.

The primary advantage of court is that a decision will be made if a settlement cannot be reached. There are cases where that is a very significant benefit.

The primary disadvantages of the traditional court process is that the outcome often comes with additional stress, acrimony, financial expense, and damaged relationships. The additional stress is, in part, created by the client’s loss of self determination over the outcome.

Court is also the least private method of resolving family law issues. Most hearings and trials are public. Court decisions about your family will become part of the public record, and may be available on the Internet.

Mediation

Mediation is a conflict resolution process where a neutral mediator assists the parties to reach agreements. The mediator acts as an “honest broker” to help guide and facilitate the negotiation between the parties. The role of the mediator is not to tell the parties what to do (like a judge would), but instead to provide a structure for the discussion between the parties that can help them to reach a mutually acceptable agreement. In other words, a mediator does not impose a decision — instead, the settlement is created by the parties.

Mediation can be about nearly any family law subject. Mediation can also be very helpful in preparing Cohabitation, Pre-nuptial, or Marriage Agreements.

In order to maintain neutrality, a mediator cannot provide the parties with “independent legal advice”. The mediator will provide general legal information, but will generally stop short of giving the parties a legal opinion about what a judge would decide if the issue went to court. To obtain this sort of advice, the parties will need to consult with independent lawyers.

Sometimes parties will attend the mediation with their respective lawyers, and this can be an very efficient way to proceed. If your lawyers will not be present for the mediation, however, it will be important for you to consult with legal counsel before you sign any agreement, so that you fully understand the legal ramifications of the proposed agreement to ensure that there are no unintended consequences. Doak Shirreff LLP recommends that every party to a mediation consults with independent legal counsel before finalizing any agreement. Parties are free to consult any lawyer they wish. If parties do not have counsel and need a referral, we can provide the names of some independent lawyers with whom parties may wish to consult to prepare for mediation, and before signing any binding agreement.

Mediators use procedures and methods that suit the personality and style of the particular mediator, and the particular type of dispute. For example, and to generalize, the process used in a divorce mediation will look very different from a mediation with ICBC about car accident, or a labour dispute between a union and the employer, etc.. Similarly, a mediation conducted by a retired judge or a lawyer will likely look quite different from a mediation conducted by a mental health therapist. There are a wide variety of styles and techniques. If one style of mediation (or mediator) does not seem to fit you, another style of mediation might.

The primary types of mediation conducted and used by the lawyers of Doak Shirreff LLP are “facilitative mediation” and “evaluative mediation”. There are also other styles such as transformative or narrative mediation.

“Facilitative” mediation is a widely practiced form of mediation. It is a process that focuses on the needs and interests of the parties, instead of being focussed solely on their technical legal rights. This form of mediation will almost always have the parties working together in face-to-face meetings in the same room with the mediator, although it is possible to have the parties sit in separate rooms, with the mediator shuttling between the parties for part, or all, of the process. Facilitative mediators will often assist parties by having them work on communication and problem-solving skills during the mediation session. This has long term advantages for the parties because the conflict resolution skills that they learn during these meetings help them to minimize the need to involve the assistance of mediators and lawyers into the future. This can be a very significant consideration for families that separate when their children are very young.

“Evaluative Mediation” is a model often practiced by lawyers or retired judges who conduct mediations that are modeled after litigation experience, as well as by some industry-specific mediators. This process is frequently used in court at settlement conferences, and for ICBC car accident cases.

This process looks and feels quite different from a facilitative mediation. In an evaluative mediation, the mediator evaluates the legal and factual merits of the parties respective positions, and then shares his/her perspective of how the matter should be resolved. The mediator will then typically try to forge agreement based on the mediator’s views concerning the law and the facts. During this type of mediation, it is more likely that the parties will sit in separate rooms, with the mediator traveling from room to room to convey perspectives and offers.

At settlement conferences, lawyers generally try to demonstrate how their evidence and legal theories are better than the other lawyer’s, thereby trying to sway the settlement judge or master towards their position.

Evaluative mediation and settlement conferences, are most useful in cases where the law is the most important consideration. Evaluative mediations generally take place after there has already been substantial preparation for court. This is because it can be difficult to make legal arguments and to show evidence to an evaluative mediator without that type of preparation.

The primary disadvantages with evaluative mediations and settlement conferences are that they usually occur after parties have become quite entrenched in their positions. Furthermore, the decisions are generally made on the basis of the strength of legal positions, rather than on what may really be the underlying issues, or what may be most important to the parties and their futures.

Not uncommonly, lawyers and parties take extreme starting positions at settlement conferences, knowing that they will need to compromise. Generally, both sides are pushed to compromise from their positions, with the result that both parties may feel resentment. Settlement conferences are often long (generally scheduled to last 4 to 8 hours or longer), as a result decisions can be made during periods of stress and fatigue. This can result in either party making ill-considered concessions in order to get the process completed, rather than continuing the discussion to find outcomes that can actually work for both of the parties over the long haul. Therefore, the agreements reached can be relatively short-lived; because resentful people tend to be reluctant to comply with bad decisions that they felt that they were pushed into when they were fatigued. It is also common for issues to be “missed” during time limited settlement conferences. Therefore, post-settlement legal proceedings, such as enforcement actions, or lawsuits to vary settlements, are common.

When talking with your lawyer about “mediation”, make sure you understand what type of mediation your lawyer is talking about. Many lawyers lack formal training in alternative forms of dispute resolution (other than laws and court procedures), so when lawyers talk about “mediation”, they will often be referring to evaluative mediation (or “settlement conference mediation”), because that is the model that many lawyers use to settle their cases.

Mediation: the process

In spite of the differences in mediators styles or approaches to mediation, there are some commonalities and a mediation process can generally be broken into several stages or phases.

The first stage is the “preparation phase”. In this phase, the parties are usually physically separated. The mediator will confirm that the parties want to participate in the mediation, and enter into an Agreement to Mediate. During this stage the mediator may interview each party separately (in a “pre-mediation session”) to gather some initial information about the facts and issues, or the mediator may invite each of parties (or their lawyers) to provide a brief written summary of the dispute.

The second phase is the “introduction phase” or the establishment of ground rules. The parties are generally brought together for this phase in a “joint mediation session”. This phase is intended to provide a common understanding of expectations for the clients and mediator during the meetings in order to allow the mediation sessions to proceed productively.

The third stage is the “information sharing phase” and is intended to allow the parties to share information with each other about the situation, in front of the mediator, in order to identify the areas of existing agreement, as well as the issues that the parties still need to resolve.

The fourth stage is known as the “interest phase”. This phase involves exploring the issues further to help the parties understand what interests (fears, desires, concerns, hopes, and needs) are underlying each of their positions.

The fifth phase is the “brainstorming phase”. During this phase the parties generate various options to resolve the dispute. Once a variety of options are generated, then the mediator assists the parties to evaluate those options and come to an agreement.

The final phase involves documenting any agreement that is reached.

Generally, lawyers are not present during facilitative mediation sessions, however, lawyers are welcome to attend mediations with the prior agreement of both parties. Prior arrangement is needed to ensure that there are no surprises for either party, and that both parties have an equal opportunity to have counsel present during a mediation session.

Lawyers will generally be present if the mediation is intended to be largely an evaluative mediation. It can also be very helpful to have lawyers present if the parties want to ensure that the agreements reached at mediation can be set out in an enforceable contract without the risk of those agreements “falling apart” once one of the parties to a mediation goes to a lawyer for independent legal advice.

Mediation: pros and cons

Mediation can be cost-effective and can work well for people who have less-complicated situations, or do not feel that they need continuous support of their lawyers during the discussions.

Mediation can happen at any time during the dispute. Starting with mediation early on in the life of a dispute can be very helpful, as it can allow the resolution of immediate issues and provide clarification for the parties as to how to approach the steps needed to reach final agreement. Delaying mediation until after “discovery” or other legal procedures have been exhausted may be mistake, because it also delays focussing the parties on their true needs and interests which are the foundational pieces from which they can create a better settlement. Many lawyers (particularly those lawyers who are most familiar with evaluative mediation) will not recommend mediation to their clients until quite late in the divorce process.

Mediation is well suited for protecting privacy. Instead of going to court and placing your personal information in a public court record, the negotiations are private and confidential, and the details of your settlement can remain confidential by placing them in a contract.

Like all dispute resolution processes, mediation is not the right process for everyone. A Collaborative Family Law process may be more suitable for parties who have a more moderate to high levels of conflict, because of the additional support that can be provided by other professionals such as communication or divorce coaches and child or financial specialists. By the same token, a Collaborative Family Law process may be more “process” than parties need, and Mediation or Supported Self Negotiation may provide sufficient support.

If the parties are unwilling or unable to tolerate sitting in the same room together, or to consider the other party’s point of view, or to explore different options to see which ones might be best suitable for the entire family, then Facilitative Mediation and Collaborative Family Law will likely be unsuitable.

Collaborative Family Law

A Collaborative Family Law process allows the clients to control the outcome of their negotiation in a supported context where specially trained lawyers provide the structure to reach resolution.

Collaborative Family Law is an actual process that is more than simply polite or “cooperative” traditional lawyering with a “smile on your face”. It involves deploying a much different procedure than a court process, and it requires specific training on the part of the involved professionals.

Practically every divorce touches these three areas: legal issues, financial issues, and emotional issues. If you have children, there will also be parenting issues to resolve. The mix of professionals that you may want on your team will depend upon the specifics of your particular case and your unique needs. Depending on your situation, your professional team may consist of just four people — the clients and their lawyers – or it may include additional professionals in an interdisciplinary model. A full interdisciplinary professional team usually consists of a financial specialist, one or two divorce/communication coach(es), and a child specialist.

Although you will work as a team, your Collaborative Family Law lawyer represents you alone, and is not the lawyer for the other client. The approach of your lawyer in a Collaborative Family Law case, however, will necessarily be different than the approach used in a conventional or traditional litigation based case. To reach a durable agreement, the lawyers will work together, and with you, to build an atmosphere of trust with all so that the issues can be discussed and resolved. They will use a “problem-solving approach” using interest-based dispute resolution skills, instead of an “adversarial approach” and positioning.

To work effectively in this model, lawyers need to learn how to productively confront rather than avoid conflict, and how to help the parties to productively discuss the issues that cause the conflict. These additional skills are not yet taught on a widespread basis in law schools, nor are they part of the hands-on experience that lawyers normally receive. Lawyers trained in Collaborative Family Law and mediation often have extensive training that goes well beyond their law school training.

The collaborative process

Collaborative Family Law cases involve a series of face-to-face meetings that are facilitated by the lawyers and the other members of the professional team.

The initial steps involve starting the process and signing the “Participation Agreement”. Then through a series of meetings, the professionals will help the parties to identify each person’s highest interests and goals, exchange necessary information, and learn about each individual’s and the children’s (if any) future needs and concerns. After receiving appropriate legal, tax, and any other information necessary to make fully informed decisions, the parties then brainstorm options and work together to evaluate those options and create their resolution. By proceeding through these stages in an orderly fashion, important pieces of the puzzle are not overlooked and the likelihood of reaching a durable agreement is enhanced. The parties’ agreements are ultimately documented by way of legally binding settlement documents.

Therefore, the core of the process normally consists of three main stages: (i) the “Information Gathering Stage”; (2) the “Option Generating Stage”; and (3) the “Agreement Stage.”. You will note that this is very similar to a Facilitative Mediation. The main advantage to the client, however, is that his or her lawyer is always present for the joint sessions, and is, therefore, available for consultation about the legal ramifications of the client’s choices throughout the whole process and not just at the very end before an agreement is signed. Whereas, in a facilitative mediation, the clients may attend the joint sessions without their lawyers. This can result in the clients feeling rather exposed and vulnerable, and the mediation process may need to be interrupted to allow a party to consult with a lawyer before proceeding with the mediation. It can also be very difficult for a lawyer to provide decent advice to a client if that lawyer has not been present at the negotiating table, and has not witnessed first hand the various considerations that were addressed, and concessions that were made, in reaching the agreement that the lawyer is being asked to review to provide “independent legal advice”. In an effort to be “thorough” a lawyer may raise issues that result in unintentionally unravelling a solution that was entirely “workable” for the clients.

Collaborative Family Law: Pros and Cons

Collaborative Family Law is well-suited for complex divorces, such as cases involving complicated property and business issues, special needs children, and unique parenting issues. It is also a recommended process when preserving post-divorce relationships is critical, even though the conflict is significant.

Collaborative Family Law is well suited for protecting privacy. Instead of going to court and placing your personal information on the public record, negotiations in Collaborative Family Law are private and confidential, and the details of your settlement may remain confidential.

While not inexpensive, Collaborative Family Law is typically far more cost-effective than traditional court focussed adversarial representation because spouses receive the support, and learn the information necessary to resolve significant disputes without incurring the higher procedural expenses entailed in a traditional adversarial process.

The Participation Agreement that is signed by the clients and the lawyers in a Collaborative Family Law case provides many protections to ensure the integrity of the process. For example, the Participation Agreement sets out standards and expectations for behaviour that focus on “good faith” negotiations, and includes a requirement that everyone provides complete information.

To ensure that the lawyers remain focussed on settlement, the Participation Agreement also provides that if a settlement is not reached in the collaborative process, then the lawyers are disqualified from representing their clients in court or any other adversarial process. That is, if the two collaborative lawyers cannot help you settle your case, then they both lose their jobs. This creates a major financial incentive for all concerned to make the process work. The clients are also assured that 100% of their lawyer’s effort is focussed on settlement, with no effort being diverted to strategize for a court battle that is statistically unlikely to ever happen.

The primary disadvantage of the disqualification provision is that in the unlikely event the collaborative process terminates before a final settlement is reached, then both clients need to retain new lawyers. Since about 90% of reported collaborative cases resulting in a settlement within the collaborative process, many divorcing couples feel that the advantages of the disqualification provision outweighs the disadvantages.

Supported Self Negotiation

Supported Self Negotiation relies on your ability to negotiate for yourself. In many cases, couples are able to reach agreement “on their own” with some limited advice and support.

In this type of process, your lawyer would be providing what is called “unbundled services”. Your lawyer would not be present with you during your negotiation with the other party, and the other party may or may not know that you have even consulted a lawyer.

You and your spouse would negotiate together. This is sometimes referred to as the “kitchen table agreement” process. It is important, however, to ensure that you conduct your negotiation in a safe environment that is not within earshot of your children. Accordingly, conducting the negotiation literally at the “kitchen table” is not normally recommended.

During a Supported Self Negotiation approach your lawyer can provide support to you in advance of the negotiation by explaining the law, by explaining your other “process options” and their likely costs, by helping you identify what is important to you, and by helping you brainstorm various alternatives for settlement.

If you are successful in reaching an agreement with the other party, then your lawyer can also help you by preparing a legally binding agreement for review by the other party and his or her lawyer.

Doak Shirreff LLP recommends that every party to an agreement consults with independent legal counsel before finalizing any agreement. It is important that the other party who is entering into any agreement with our client, has the opportunity to consult with their own independent lawyer before signing any binding agreement. Such parties are free to consult with any lawyer they wish.

The legal costs to support a “Supported Self Negotiation approach” are very difficult to predict because different people will require different levels of support. This approach has the appeal of offering the lowest legal cost if it is successful. If it is unsuccessful, however, then the other party may to turn immediately to the court process, or to other more adversarial style lawyers. Therefore, one of the most important initial agreements that you can make with your spouse, is that if your discussions breakdown you will consider trying a different process option, such as Mediation or Collaborative Family Law, before you resort to the courts. It is often very difficult for separating couples to manage a Supported Self Negotiation approach effectively. Separating couples are often separating specifically because they do not communicate very effectively with each other. Therefore, it can sometimes be “wishful thinking” to expect such a couple to be able to effectively negotiate the terms of a Separation Agreement, and it is very normal for couples to require additional professional support to facilitate these discussions.

Last revised: August 10, 2010

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