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This chapter provides a brief description of the different alternatives to court that are covered in the following chapters, 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. Introduction The fundamental goal shared by all alternatives to litigation is to arrive at a settlement of all of the issues between the parties that could have been fought about in court. As you might expect, coming to this sort of agreement requires a certain amount of flexibility and the recognition that no one is going to get all that he or she wants. Whatever a person's "wish list" might be going into negotiations, the end result almost always represents a compromise and some accommodation of the other party's own goals, preferences and expectations. While it is not always possible to avoid court, especially when one or both parties cannot or will not accommodate the other, or where one party must take urgent action to restrain the other party from doing something, out-of-court alternatives usually offer a more friendly resolution to the breakdown of a relationship and are usually far less stressful and disruptive to the parties and to their children. A negotiated settlement is especially important where children are involved. Where there are no children, a couple's involvement with one another can terminate as soon as the terms of their agreement are fulfilled; they can walk away from each other 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 want to or not, for the next ten, 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. The child will want both parents there to witness the birth of a grandchild, to celebrate a marriage or be there during an illness. No matter how tense or awkward the relationship between the parents is, the simple fact is that they will both be involved in each other's lives until their child preceases them. Maintaining a functioning relationship is a necessity. For more information about parenting issues after a relationship has ended, and how to put the children ahead of 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, whether married or not, and how to keep those issues from hopelessly complicating your dispute, see the chapter Marriage & Divorce > Separating Emotionally. Negotiation Negotiation means a co-operative effort to resolve a conflict 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: Bob: "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." Bob: "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." 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. Mediation Mediation is a co-operative negotiation process in which the parties attempt to arrive at a final agreement with the help of a neutral, third-party mediator. The goal of the mediation is to arrive at a settlement of some or all of the issues between the parties 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, as the parties and the mediator may prefer. Some family law lawyers are also accredited Family Law Mediators, which means that they have had additional training in mediation and have practiced law full-time for at least three years. Lawyers who are also Family Law Mediators, like the author, will usually advertise that they are both litigators and mediators. 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 an arbitrator, and they agree that the arbitrator will have the authority to impose a resolution in their dispute. Arbitration is a lot more formal than mediation, as the process is very much like court. Each party makes their argument to the arbitrator and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation. Parenting Coordination Parenting coordination is halfway between mediation and arbitration. It is a child-focused, out-of-court process that helps separted parents deal with parenting conflicts. The parenting coordinator is a family law lawyer or a counsellor who the parents hire on a long-term basis. For this reason, parenting coordination is best reserved for parents who are in a fairly high level of conflict with one another. In this process, 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 coordinator's services. When a problem crops up, either parent can contact the coordinator to start addressing the problem. If possible, the parenting coordinator will try to work out a solution by mediating an agreement between the parties. If that doesn't work out, the parenting coordinator will impose a solution in his or her role as an arbitrator. Parenting coordination is new to British Columbia, even though it is being used in other jurisdictions, including Alberta, Ontario, Oregon, Washington, California, Texas and North Carolina. For more information about parenting coordination, see the website of the BC Parenting Coordination Steering Committee at www.bcparentingcoordinators.com. Collaborative Law Collaborative law is the new kid on the negotiation block, so to speak. What makes collaborative law stand out is that the parties sign an agreement not to go to court and the process is facilitated by the parties' lawyers and by "divorce coaches," psychological counsellors who look after the emotional needs of the parties and help them through the process. Back to the top of this chapter. Formalizing Settlements There are a number of different ways that lawyers and mediators record a settlement. The point of having a formal record of a settlement is so that everybody has a copy of the agreement that they can refer to if there's a dispute down the road, and neither party can say that they didn't agree to something that they did agree to. It's also a lot easier to prove the terms of a written agreement than to prove the terms of an oral agreement. All the court really needs to show that there is an agreement is some sort of proof that both parties agreed to the same settlement. Notes scribbled on a napkin, for example, might constitute a written agreement that the court will uphold. Letters exchanged in the settlement process have also been found to adequately record an agreement. Typically, though, lawyers tend to be a lot more detailed and a lot more thorough. Separation Agreements A separation agreement is a contract entered into by spouses or partners after the breakdown of their relationship. The terms of the contract are the product of negotiation between the parties and their lawyers, and can deal with all or 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 entered into even after litigation has started. Separation agreements are discussed more in more detail in the chapter "Family Agreements > Separation Agreements." 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 a course of negotiation; they are a rough and ready outline of the parties' agreement, an agreement often reached at the end of a negotiation session or on the steps of the courthouse. Typically, Minutes of Settlement are little more than an outline of the points agreed to, on the understanding that the terms will be put into proper legal language later. Minutes of Settlement are signed by the parties and are their lawyers the moment 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 the Minutes are used for a consent order, they are usually attached to the end of the order as a schedule. Minutes of Settlement can be enforced by the courts as a binding agreement between the parties, even without a consent order being entered in court. 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 a Memorandum of Understanding can be enforced by the courts, when there's evidence that the other party actually agreed to the settlement, Memoranda are always put into a more formal document later on, either as a consent order or as aseparation agreement. Consent Orders Orders "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 want to know, "has changed such that you can't live with an 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. 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. 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 to ask the court 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 don't like it; there must be an awfully good reason why the court should do anything different than what the agreement provides. 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 (or "vary") 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 are enforceable as a binding agreement in the same way that separation agreements can be enforced. The enforcement of orders and agreements is discussed in the chapter "Other Family Issues > Enforcing Orders & Agreements." 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.
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 each gave up something to get something else. 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. Back to the top of this chapter. Site Navigation
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