- September, 2021
Options for settling a family matter outside of court
By Andrea Swabuk-Moe
Separating from a spouse is stressful enough without adding in the cost and delay that typically comes with traditional family law litigation. Even before the COVID-19 pandemic, our court system was far from perfect, but with trials in Vancouver currently booking into 2023, most clients prefer a more efficient option.
The good news is that there are many alternative methods of dispute resolution. In this article, I will review and outline the benefits of two options: mediation and mediation/arbitration.
Option 1: Mediation
Mediation is facilitated by a mediator, a neutral third party whose aim is to help both parties feel heard, understand each party’s goals and advocate for an acceptable settlement.
The process is conducted on a “without prejudice” basis, meaning that neither party can refer to statements made or rely on a settlement offer made during mediation in future court proceedings. Basically, what happens in mediation stays in mediation — it can be thought of as a safety net that can pave the way for more frank and open discussions.
More control over the outcome
The freedom of the mediation process allows our clients to get a bit more creative when it comes to discussing solutions for all parties, rather than sticking strictly to the letter of the law on issues such as spousal support, parenting or the division of family property.
For example, if the children reside primarily with one parent and the parties agree to work towards a shared parenting arrangement, we may agree to begin with a transitionary period. Parents may involve other professionals, such as a child specialist, to ease the children’s transition. Alternatively, if a parenting matter is adjudicated in court, judges are often not provided with sufficient evidence or time to consider creative parenting solutions customized to fit a specific family’s needs.
Mediation offers parties an additional measure of control compared to the litigation process. Both parties have an opportunity to decide and agree on who to retain as the mediator. The mediation process is less formal than going to court and is less intimidating for people who have little, if any, experience with the justice system. Neutral third parties come from all sorts of professional and cultural backgrounds that impact the method by which mediators approach settlement negotiations. An experienced family lawyer can help you pick a mediator whose style and background suits your specific matter and family.
Dispute resolution often faster, more cost-effective
For parties who are open to the process, mediation tends to be much more cost-effective than litigation. Even though clients are paying an additional hourly rate, the expense is typically shared, and immediately pays off once a fair and efficient settlement is reached — which occurs in the vast majority of cases.
Mediators in B.C. who are accredited by the Law Society of British Columbia can prepare Minutes of Settlement or Court Orders immediately after a settlement is reached. So, some couples can walk into an office in the morning and walk out with a signed agreement later that same day.
Accredited mediators are also trained in screening for family violence and power imbalances and can design the mediation process with those dynamics in mind. For example, it may be appropriate for certain clients to participate in shuttle mediation — a process in which the parties remain in separate rooms throughout the negotiation until a settlement is reached.
Although some clients attend mediation without lawyers, I urge those considering the mediation process to obtain independent legal advice in advance of the first mediation session. My experience is that when both parties start the mediation process properly prepared and aware of their rights, the chances of success are much higher. In a lot of cases when clients attend mediation before consulting legal counsel, the mediation will either fail or the client is extremely unhappy with the result, as mediators cannot provide legal advice to either party.
Many parties go into mediation thinking that they will not likely settle, but most are pleasantly surprised when they reach an agreement with the assistance of a qualified professional.
Option 2: Mediation/arbitration
This hybrid process takes the guesswork out of mediation by guaranteeing a settlement. Mediation/ arbitration starts the same way as mediation — with settlement discussions before a mediator — and it can end there if the parties are successful in reaching an agreement. Parties are required to sign a mediation/arbitration agreement with the facilitator before commencing this process.
If the parties are unable to reach an agreement on all or one of the issues, the mediator’s role transitions into an arbitrator. Depending on the terms of the mediation/arbitration agreement signed by the parties at the beginning of the process, the arbitration is often a “fresh start,” which requires the arbitrator to assess information for the first time, even if it was discussed during the mediation.
In simple terms, the arbitrator is like a private judge — they remain neutral, but at this stage, the arbitrator has the authority to make an award similar to a court order. The parties and their lawyers will provide input as to how the arbitration proceeds: either as an informal procedure or as a trial in court with the examination of witnesses and oral legal arguments. Some couples prefer the arbitration phase to closely mimic litigation, while other parties may want to loosen the rules and operate on a more informal basis when it comes to evidence, examinations and court reporting. If the parties cannot agree as to a process, the arbitrator will decide.
Arbitration is not as reliably less expensive than litigation as mediation, at least at the outset. There are some front-end costs to hiring the mediator/arbitrator and preparing a case, but over the longer term, the expense pales when compared to the cost of years spent in litigation.
Another advantage of the mediation/arbitration process comes with the certainty and control it provides to the parties as to timing. When you enter mediation/arbitration, you know the whole matter will be settled one way or the other commonly within a few months, rather than languishing in court, potentially for years.
In this process, parties also get to choose their decision-maker, which is a big advantage over litigating a matter in court. While all of our province’s judges are extremely capable, they come from different legal backgrounds, and may not have extensive experience in family law specifically.
When it comes to selecting a mediator or arbitrator, there is no shortage of excellent options — many of the province’s most respected family law practitioners are qualified to act, including our founding partners here at Hamilton Fabbro, Lisa Hamilton and Stephanie Fabbro.