Negotiation vs. Litigation in B.C. Divorces: A Detailed Guide
Divorce typically introduces another extraneous encumbrance on an already taxed life. The end of a relationship may well be in a couple’s best interests but dissolving any union can come with stress and unseen challenges.
Divorce Options in British Columbia
While you may be experiencing feelings of anger and betrayal at the end of a relationship, it is in your best interests to avoid weaponizing your divorce. There can be nothing more expensive than regret and a decision made when emotions are running high can have a significant financial impact.
How you choose to end your marriage is a personal decision. Some will insist that they want their day in court and there may be times when it is justified. However, it is in your best interest to consider all your options before making a final decision and that may mean choosing negotiation over litigation.
At Mills Family Law we tailor our representation to meet our clients’ unique needs and strive to achieve the results you expect.
We can offer independent legal advice, guidance for self-representation, mediation and collaborative law and full-scope litigation. You will likely have many questions about challenges you are facing and we are here to explain the many approaches to resolving family conflict and as you decide which one can best serve you.
Exploring Alternative Dispute Resolution (ADR) in B.C. Divorces
Deciding to get a divorce can be one of the most difficult decisions you will make. What comes next can be equally challenging. If your break-up is amicable and you are on good terms with your ex – agreeing on such matters as property division and child rearing and custody issues – it may be possible to handle your separation and divorce yourself.
However, failing to consult a lawyer who can explain any possible legal consequences can be a mistake. Family law is complex and you could unintentionally agree to something that is not in your best interest.
While it is only natural to want to put the divorce behind you as quickly as possible, it makes sense to remain flexible when deciding on your options. That includes whether to hire a lawyer and how to proceed. If your aim is to settle your issues as quickly and inexpensively as possible, avoiding the courtroom is a must.
Divorcing couples are encouraged by both federal and provincial governments to consider alternative dispute resolution (ADR) to settle their differences.
ADR offers several ways to find an agreement with your ex. To learn more, you can schedule a free consultation with the team at Mills Family Law to discuss what works best for you.
Collaborative Divorce: A Non-Litigious Approach
The goal of the collaborative law process is to settle your case fairly without going to court. The first step in this process is to determine if your circumstances are ideal for this approach. The lawyers at Mills Family Law are strong advocates for collaborative family law and we encourage this process whenever appropriate. We will sit down with you and explain how you may be able to benefit from taking this route.
A collaborative divorce can only be used if both sides consent. You and your former partner would also be expected to hire your own lawyers specifically trained in this process. You, your ex and your lawyers must sign an agreement promising to work together to find solutions acceptable to both parties.
Key Elements of the Collaborative Divorce Process
This agreement dictates that you and your former partner will:
- not go to court or threaten to go to court;
- communicate with honesty and respect;
- make a sincere effort to understand each other's needs and concerns;
- disclose all relevant information promptly; and
- work together to find an agreement that is in both side’s best interests.
Experts, including financial specialists, coaches and mental health professionals may be called in for advice and guidance during the collaborative law process.
The process is confidential and you and your ex will decide on the issues important to you, relying on advice from your lawyers. There are several benefits to this approach. You have more control over the timing, process and results. If you appear before a judge or use an arbitrator, they would be the ones to decide your issues.
If the collaborative process fails, the lawyers withdraw from the case and you would have to find another attorney to represent you moving forward.
Divorce Mediation in British Columbia
Benefits of Mediation in Divorce Cases
Mediation is another way to end a marriage without going to court. It allows the parties to have some control over what happens.
Mediators are used in many areas of the law, including family law. They are neutral third parties, specially trained to help people resolve their disputes. They strive to help keep the discussion going to guide both sides to an agreement. They do not take sides, find fault or give legal advice and they do not make binding decisions, unlike arbitrators.
Each mediation is unique and the time it takes to complete will depend on the number of issues that need to be resolved. You can attend mediation with or without a lawyer and once both sides agree to accept an agreement it is enforceable by court order.
It is important to note that mediation is still an option in cases where there is conflict or allegations of family violence since spouses do not have to be in the same room during the process. Mediation can also be conducted virtually. Some level of compromise is also necessary. Neither person should expect to get exactly what they want.
The Notice to Mediate Process
While mediation is usually voluntary and can be more effective if both sides agree to attend, a reluctant spouse can be required to participate if a Notice to Mediate is served. The notice can be used between 90 days after the filing of the first response to a family claim and 90 days before the date of a trial.
The divorcing spouses can appoint a mutually acceptable mediator within 14 days after service of the Notice to Mediate.
Divorce Arbitration: An Alternative to Court Trials
Combining Mediation and Arbitration
Arbitration can be used in conjunction with mediation. You and your ex can agree to attempt to resolve your issues through a mediator. If you cannot come to an agreement on certain matters you can leave it to an arbitrator to decide. You can use the same person to mediate and arbitrate your case or choose someone different.
Pros and Cons of Divorce Arbitration
An arbitrator essentially acts as a judge, making legally binding decisions based on the evidence presented. However, the process is less formal and often more efficient than going to trial. The other advantage of this format is you and your former partner can choose the arbitrator. You do not get the opportunity to select a family court judge. An arbitrator may have more experience adjudicating the issues that are important to you than some judges would.
There are some important caveats to keep in mind when using an arbitrator. Any decision made must be consistent with the Family Law Act. You can choose your arbitrator and you have a say in the rules of procedure but it is not a collaborative process. You and your ex will get to state your case but the arbitrator has the final say and their decision is binding.
Choosing the Right Approach for Your B.C. Divorce
There are many decisions that must be made when you decide to divorce. Although you may want your day in court, it is not always in your best interests. Our courts are overburdened and it could be years before your matter is resolved. The process is also expensive and, unlike alternative dispute resolution, not confidential.
At Mills Family Law, we can work with you to help settle your case quickly while reducing the stress and uncertainty that can be associated with a court trial. We offer a personalised and compassionate approach with leading legal knowledge and smart strategy. Contact us today so we can explain which option works best for you.
