Staying out of court

When you divorce or separate from your spouse or common-law partner, there are often many issues that must be solved, such as custody, access, guardianship, child or spousal support or maintenance, and how to divide property.

Many couples want to solve these issues without fighting in court or paying huge legal bills. You and your spouse/partner may want to work together to reach an agreement that meets both your needs while still maintaining your legal rights. If you and your spouse/partner want to solve your issues without going to court, family mediation and the collaborative family law process can help you.

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Mediation

In mediation, a mediator helps you and your spouse/partner work together to identify and solve the problems resulting from your separation or divorce. The mediator is a neutral third party who has been trained to help you and your spouse/partner discuss and resolve these problems. The mediator does not make decisions or impose solutions. He or she encourages you and your spouse/partner to listen to each other and helps you come up with ideas for resolving your differences. By doing this, the mediator helps you and your spouse/partner come up with a solution that is acceptable to both of you. If you have children, the mediator will help you make decisions that are in their best interests. If the mediator is a lawyer, he or she can't give either of you legal advice, but he or she can give you general information about family law.

Mediation meetings are normally two to four hours long. Depending on how many issues you need to resolve, there may be more than one meeting. Sometimes the mediator will meet with you or your spouse/partner separately. The mediator may also give you "homework" to get you to identify the issues and get all the relevant financial or other information.

Reaching a mediation agreement

After you and your spouse/partner have agreed on a solution, the mediator will prepare a written agreement. Before you sign the agreement, you and your spouse/partner should each have your own lawyers look over the agreement and advise you on it. The mediator can only help you reach an agreement and can't give you and your spouse/partner legal advice.

A mediated agreement is a contract that can be enforced by the court. The agreement can't be changed unless both parties agree, your circumstances change significantly, or a court considers it appropriate to change it. If you're married and either you or your spouse seek a divorce, the agreement can be made part of the divorce order. If the agreement is fair to both you and your spouse/partner, the court will probably approve it.

For more information about mediation, see the Dispute Resolution Office’s Guide to Mediation in BC.

Collaborative family law

In the collaborative family law process, you and your spouse/partner agree to work together with lawyers who practice collaborative family law to find acceptable solutions that work for both of you. Both you and your spouse or partner are represented by your own lawyer. The collaborative family law process is different from the traditional divorce or separation proceedings in several ways, including:

• No court — Both you and your spouse/partner and your lawyers sign a written agreement to work together at resolving your issues without going to court.
• Honest communication — You and your spouse/partner also agree in writing to open and honest communication, including agreeing to openly share information (such as information about your finances) with one another.
• Team approach — Specially trained lawyers, divorce coaches, child specialists, parenting coordinators, and financial advisors are available to help you, as necessary. You, your lawyers, and coaches will work as a team to solve your disputes, whether the issues relate to support, division of property, or parenting your children.
• Four-way meetings — Instead of letting your lawyers do the talking, you and your spouse/partner and your lawyers participate in a series of meetings. Sometimes your lawyers may meet alone to set the agenda for the meetings or to give each other information about you or your spouse/partner that is necessary for solving the issues. The number of meetings required will depend on how many issues you and your spouse/partner face and how complex these issues are.

What is important to the collaborative family law process is that you and your spouse/partner are willing to discuss and solve your separation issues with honesty and respect and without treating each other as enemies.

Reaching a collaborative family law agreement

An agreement reached through the collaborative family law process is a legal contract. The agreement can only be changed if you and your spouse/partner agree to change it or if a court orders a change. As with any contract, the agreement can be enforced by the court. If you're married and either you or your spouse seek a divorce, the agreement can be made part of the divorce order. If the agreement is fair to both you and your spouse/partner, the court will probably approve it.

Can anyone use the collaborative family law process?

Collaborative law may not be appropriate for everyone, especially if there have been issues of family violence or child abuse, or if one of the spouses/partners won't participate fairly in the process.

However, in general, collaborative law offers you and your spouse/partner the ability to come up with your own solutions, which often means you will spend a lot less on professional fees than you would if you were to resolve your issues in court.

(See also our frequently asked question What is collaborative law?)