Family disputes tend to involve sensitive topics and deeply personal issues. Although names are often omitted from published cases, some decisions made in court are published online and these decisions may contain your and your spouse’s full names, your lawyers’ names, and any personal information that is relevant to the decision. 

Delays in court are common and you (or your lawyer) may prefer some judges to others. Although Artificial Intelligence may replace everyone in the legal profession within the next few years, our judges are currently human beings and can make mistakes. It may surprise some people to learn that there are judges in family court who have little experience in family law and will rely on the lawyers to inform them of the applicable case law and legislation. 

When two spouses agree to resolve their issues through the “Collaborative Family Law” process, both parties must retain lawyers who are listed on the BC Collaborative Family Law Roster, and they must commit to avoiding any court applications. Other professionals, such as divorce coaches, financial advisors, counselors, Parenting Coordinators, and mediators may become involved, but if either party decides that the Collaborative process is not working and a court application is required, both parties will be required to retain new lawyers. 

At The Law Portal, we believe that court is a necessary tool that should only be used when the opposing party is being unreasonable and his or her refusal to cooperate is causing harm to our client or to our client’s child(ren). 

Although our lawyers may practice remotely, your retainer agreement will state whether your lawyer will travel for court appearances, or alternatively, if your remote lawyer will partner with a local lawyer to attend court appearances. 

It is possible for spouses in a high conflict separation to settle their issues without ever setting foot in a courtroom, particularly if they agree to attend mediation or mediation-arbitration (“med-arb”)

Alternative Dispute Resolution (“ADR”)

Mediation and arbitration are two alternative dispute resolution (“ADR”) methods that offer several advantages over traditional litigation. They can also be combined in a process referred to as “med-arb.” 

These confidential processes allow families to keep their disputes out of the public eye and can be customized to fit each family’s unique situation. An experienced family lawyer can help you decide which approach best suits your situation.

Mediation 

Mediation is generally scheduled for one full day, but mediation can be scheduled for a couple of hours or for several days. Either party (or the mediator) can stop mediation at any time if it does not seem to be an effective use of time. Mediators are required to do screening for family violence and may determine that mediation is not appropriate if there are serious or ongoing concerns about family violence. 

If you and your spouse reach an agreement in mediation, the agreement may be written out by the mediator and signed by both parties. After being signed, the written agreement can be filed in your local court registry, and it will be as binding as a court order. 

Parties can attend mediation with or without a lawyer. If either party attends mediation without a lawyer, the mediator may prepare a draft agreement or “Minutes of Settlement” and require that party to obtain independent legal advice on the agreement before signing. In that case, the agreement is only binding if both parties sign the agreement after being advised of their rights by a lawyer. 

The Justice Access Centre offers free mediation regarding child-related issues, and some parties opt to attend mediation in intervals (monthly, for example) until everything is resolved.  

Hiring a reputable and highly-skilled family law mediator is a wise investment because it often enables parties to reach a fair outcome in the most private, amicable, and cost-effective method possible. Parties will be expected to make some concessions and it is rare for either party to leave a successful mediation feeling as though they “won,” but many people leave mediation feeling a sense of satisfaction and relief that they can move on with their lives without the need to waste any more of their time fighting, not to mention wasting tens (or hundreds) of thousands of dollars in legal fees to bicker and attend court. 

If you and your spouse do not reach an agreement in mediation, everything said in mediation must be kept private and confidential and cannot be used against the other party. 

Arbitration

Arbitration is an alternative to court that is more private and less formal than attending a trial in a courtroom. Like a trial, an arbitrator can make a final and binding decision after hearing and reviewing all of the evidence available, regardless of whether either or both of the parties objects to the outcome. 

Unlike a trial, parties have more say over the process when they attend arbitration, which can cut down on unnecessary steps and legal fees. Another benefit to arbitration is that you know who your “judge” will be, and you’ll know that he or she will be an expert in family law. 

Mediation – Arbitration

Mediation-Arbitration (“med-arb”) is often a helpful way to resolve family law disputes. This is a process in which the parties attend mediation and try their best to reach an agreement. If they’re unable to reach an agreement on all issues, they will either retain a new person to act as an arbitrator, or the mediator will become an arbitrator and can make a binding decision about any unresolved issues.  

Sometimes arbitration takes place immediately after mediation, or it can be scheduled days, weeks, or months later. 

Med-arb allows spouses to work collaboratively, maintain their privacy, and essentially enables them to choose their judge to ensure a fair and final outcome. The mediators and arbitrators that we recommend to our clients are based on our confidence in their expertise and professionalism. Mediators and arbitrators must remain neutral and free of bias. By agreeing to the med-arb process, spouses commit to using their best efforts to amicably reach an agreement while having peace of mind about the fact that a reasonable outcome will be achieved, one way or another. 

Which Option Is Best for Me 

ADR methods, such as mediation, arbitration, and med-arb, offer solutions for spouses to resolve their disputes outside of the courtroom. Although the courts in British Columbia have returned to mandatory in-person hearings and trials, most mediators and arbitrators continue to offer their services via Zoom. Many mediators and arbitrators have said they continue to prefer scheduling remote meetings due to its convenience and the ability to prevent spouses embroiled in high conflict separations from having to be in the same room – or even the same building. 

Each method has pros and cons, but an experienced family lawyer can help you decide which method best suits your particular needs. 

Court can be appropriate when:

• The other party is not being reasonable or cooperative and the issue(s) needs to be urgently addressed;
• You have the financial means to pay thousands of dollars for hearings and/or tens (or hundreds) of thousands of dollars for a trial; and
• You are not concerned about a lack of privacy or the formalities involved in litigating through the courts. 

Mediation can be appropriate when:

• The parties are willing to participate voluntarily (although parties can be required to attend mediation involuntarily, it is ideal for both parties to attend voluntarily);
• The parties can communicate and negotiate with each other effectively, whether directly or through their lawyers;
• The parties want to maintain some control over the procedure and outcome of the dispute;
• The parties want to avoid the time, expense, stress, and delays involved with litigation; 
• The parties prefer to attend remotely rather than in person; and
• The parties are disputing straightforward issues that can be resolved through negotiation.

Arbitration may be ideal when:

• Both parties agree to this process (unlike mediation, parties cannot be forced to attend arbitration);
• Either party is concerned that the other will not be reasonable in mediation;
• The parties want to ensure that a final and legally binding decision will be made on all of the issues at hand;
• The parties  prefer a more private and less formal alternative to court;
• The parties want to avoid the time, expense, stress, and delays involved with litigation; 
• The parties prefer to attend remotely rather than in person; and
• The issues in dispute involve complicated legal or financial issues that may be aided by a neutral and unbiased expert. 

 Med-arb may be ideal when:

• There is a possibility, however remote, that you and your spouse will be able to reach an agreement;
• Your spouse is stubborn, or you feel vulnerable or bullied by your spouse; and
• You want to use your best efforts to reach an agreement by consensus, but you also want to ensure that a reasonable outcome will be achieved if an agreement is not possible.