Written by Millad Ossudallah, Family Lawyer at Crossroads Law, Vancouver
When faced with a family law dispute, there are several resolution options available to help parties reach an agreement. Court is rarely the first choice among legal professionals. Instead, the process often begins with negotiation.
Most people understand the term 'negotiation' in general, but in the legal world, it is one of several resolution processes. Simply put, negotiation involves parties working together to find mutually agreeable solutions. This method can lead to more satisfactory outcomes, reduce the emotional toll on everyone involved, and foster a more positive post-settlement relationship, especially in cases where ongoing cooperation is necessary.
Of course, there are instances where negotiation may not be suitable. Seeking legal advice for your unique family situation can help ensure that you are making informed decisions about the most appropriate approach.
If you are ready to start negotiating your family law matter, this blog will arm you with tips and tricks to ensure your negotiations remain effective.
With or Without Prejudice? That is the Question
Before you begin negotiating, it is important to understand two key legal terms: with prejudice and without prejudice.
Presenting an offer or proposal on a with prejudice basis means that the proposal can be used in court and cannot be withdrawn. Proposals made through written correspondence are generally with prejudice if the party is confident that their position will not change during negotiations.
Conversely, a proposal presented on a without prejudice basis means that your written correspondence is protected and cannot be used as evidence in court. This distinction allows parties to negotiate more freely, exploring settlement options without fear of repercussions.
Mediation is a good example of without prejudice negotiations, as parties can engage in settlement discussions without fear that their comments and proposed settlements will be used in court down the road.
It is important to explicitly state whether your communications are with or without prejudice to avoid any misunderstandings. Using without prejudice in your discussions can foster a more open and honest dialogue, as both parties will feel more secure in expressing their positions and exploring potential compromises.
Stay Calm and Future-Focused
Effective negotiation requires a clear mind and forward-thinking approach, considering the best interests of you and your family as you transition into this next phase post separation. By focusing on future outcomes rather than past conflicts, you can build durable and sustainable solutions. Keeping this mindset can significantly enhance the negotiation process, making it more productive and less stressful.
Here are a few more tips on how to negotiate effectively in family law:
- Define your goals – Take the time to figure out what an ideal situation looks like for you. What are your priorities? What are some realistic outcomes? Understanding what is most important to you, whether it’s financial security, co-parenting arrangements, or otherwise will help keep you focused. When you are ready to come to the negotiation table, you will be clear on what is realistic for you to move forward.
- Gather information – It is difficult to negotiate a settlement when you aren’t clear on what you are negotiating. In disputes involving family property, child support, or spousal support, the exchange of financial disclosure is often necessary. If the parties do not have a clear picture of their assets and liabilities, it can be challenging to enter into good faith negotiations. There may also be other information you require, such as details about childcare, travel plans, or historical agreements and orders, that may be important to have ready. Ultimately, knowledge is power in negotiations. Having a thorough understanding of your circumstances will serve to strengthen your position.
- Stay calm and focused – It is normal to be emotional when navigating any family law issue, but it is important to stay calm and focused on the issues at hand. Emotional reactions or outbursts can add fuel to the fire, complicating negotiations and distracting from the main concerns. Build up your support network and prioritize self-care and compassion so that when you are at the negotiation table, you are approaching discussions with a level head.
- Communicate effectively - Clearly express your needs and concerns. Use “I” statements to avoid sounding accusatory, and actively listen to the other party’s perspective. Open and honest communication is key to successful negotiations.
- Be flexible and open-minded – Negotiations require compromise. Be open to alternative solutions and be willing to adjust your expectations. Flexibility can lead to more satisfactory agreements for both parties.
- Understand your legal rights – In BC, two overarching Acts govern family law matters: the BC Family Law Act (the “FLA”) and the Divorce Act. The key difference is that the Divorce Act is federal legislation applicable to married parties, while the FLA is provincial legislation applicable to non-married parties. Taking the time to understand and familiarize yourself with the applicable laws provides a solid foundation for negotiations and helps you make informed decisions. And remember, you don’t have to do it alone. There are many free resources online (our Coach My Case blog has great content on a wide-range of family law issues), and legal coaching is a great alternative to hiring a lawyer, providing unbundled legal services like legal advice and guidance to help you as you negotiate a settlement.
- Be patient and persistent - Family law negotiations take time. Stay patient and persistent in your efforts to reach an agreement. Be committed to finding solutions even when faced with challenges.
- Participate in mock negotiations – Practice makes progress! Enlist a legal coach or friend to help you run through mock negotiations as you prepare. This provides a safe space to practice and receive constructive feedback.
What to Do When Negotiations Fail
If negotiations fail and an agreement cannot be reached, the appropriate course of action will depend on the nature of your dispute and the specific legal issues involved. Courts often encourage parties to exhaust alternative dispute resolution options like negotiation before resorting to litigation, as court proceedings tend to be more adversarial, time-consuming, and costly. However, there are several resolution routes you can consider:
- Mediation - Mediation is a voluntary dispute resolution process in which a neutral third party, known as the mediator, facilitates negotiations between parties in conflict. The mediator does not make any decisions; instead, they help the parties reach a mutually agreeable resolution. Some mediators are also experienced family lawyers, which can be valuable to parties entrenched in conflict as they can provide context on what is reasonable or what a court might decide should the parties pursue litigation.
- Collaborative family law - Collaborative family law is a voluntary, private dispute resolution process where the parties commit to settling their disputes cooperatively. From the outset, the parties are required to sign a 'participation agreement,' committing to the process and agreeing not to commence litigation. In this process, separating couples work together with their collaboratively trained lawyers to resolve disputes outside of court through negotiation. This approach has a high success rate, as removing litigation from the equation often facilitates more open and cooperative settlement discussions.
- Arbitration - Arbitration is a more formal process in which the parties hire a neutral third party, known as the arbitrator, to act as a private judge and make decisions based on the evidence presented. Arbitration can be binding or non-binding, depending on the agreement of the parties. If the parties agree to proceed by way of binding arbitration, the arbitrator's decisions would carry the same weight and enforceability as a court order.
It’s important to note that the specific steps taken depend on the unique circumstances of each case. Seeking legal advice early in the process can help parties understand their options and make informed decisions about the most suitable course of action.
Navigating family law negotiations can be challenging, but you don't have to do it alone. Whether you need help understanding your legal rights, practicing your negotiation skills, or exploring alternative dispute resolution options, our legal coaches are here to support you. Book your free 20-minute consultation with one of our experienced legal coaches today to learn more about how we can assist you in achieving a fair and effective resolution.
