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5 Ways to Avoid Litigation In Your Family Law Matter

Court should be your last resort rather than your first stop. The best divorce  lawyer avoids the courtroom when possible. 

Avoiding litigation is a great idea. While there are times that we must go to court, like when an opposing party is totally unreasonable, or a child's safety is at stake,  litigation can often be avoided. 

While you want a lawyer who is effective in the courtroom when required, you don’t want someone who is going to start an unnecessary battle. So, when you hire a lawyer, make sure they not only have courtroom experience but that they also have a significant track record of resolving disputes. 

Not so long ago, most law firms dealt with the resolution of family law disputes by suing. When their family law clients came to them, the first things these lawyers would do is start a legal proceeding on behalf of their client and sue their client’s spouse. They would literally "throw the legal book" at the other person. They would commence a lawsuit for custody of the children, division of assets, spousal and child support. These lawyers would race to take the first shot in a volley of protracted, expensive and stressful litigation. It was simply the way things were done.

What was tragic about doing things this way, is that although the parties may be in a conflict as a result of a marital breakdown, they are still the members of the same family. That is, they were once intimate, and they often share children. Each party would drag their former loved one through all the muck they could muster. They would take shots at each other in a war that seemed to have no end in sight. 

After some time in the litigation process, many cases would settle, but not after having irreparably damaged the already less than healthy relationship of the spouses. At other times, the litigation process would proceed and end only when a judge made a final decision. These same parties would often then have to go on sharing the responsibilities of parenting with the very person they just did everything they could to tear apart. To make matters worse, because most lawyers do not litigate to lose, all parties would be significantly wounded in the process. 

Okay, so enough of the bad news. There is good news.

Eventually, people began to see that the litigation process in the family law context is, well, ludicrous. Some years ago, things started to change, and family lawyers are avoiding litigation when they can.

Although clients still want things to be fair in the resolution of their family law matter, they most often are instructing their lawyers to avoid litigation rather than start it. Now it is possible that lawyers can help meet their clients’ needs and interests without starting the matter with court. The Supreme Court Family Rules have built right into them dispute resolution processes, all useful in avoiding the courtroom.

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There are many options available to litigants that will help them in avoiding litigation. Here are five:

1. Mediate the Dispute

The parties meet with a trained family law mediator. The mediator helps the parties come to a formalized and legal agreement without going to court. When you mediate, you are often able to take the steps necessary for avoiding litigation. That makes things easier on the pocketbook and easier on your stress levels. 

2. Do a Blended Mediation/Arbitration

Lawyers like to call this a med-arb. 

This process allows your mediator to make a final and binding decision. If the parties, after mediating, are unable to come up with an agreement themselves, the mediator, now arbitrator, can impose their decision. 

The parties will enter into a formal agreement allowing this process to occur at the outset.

This is a new favourite of many lawyers. Mediation is often awesome. At the same time, authorizing your mediator to arbitrate (make the decision if your clients fail to agree) at the outset of the process will result in the parties being way more reasonable way more of the time. It is also an efficient way to get your legal dispute resolved. It allows for closure of the matter and everyone can get on with their lives. 

3. Get Your Ex to Tell You What They Want

When people are in a dispute, they are often very concerned about what the other person wants. They often assume that the other party is going to be terribly unreasonable. We have all heard stories of people being very greedy, for example. Don’t let these assumptions steer you needlessly into costly litigation. Sometimes this is a lot of fear for nothing. 

If you are in a high-conflict situation, get the other party to tell you want they want. Ask them to make an offer of settlement. Although the offer of settlement might not be particularly what you want, maybe it is something with which you can live. Maybe you can work with it.

4. Start Your Matter With the "Velvet Gloves" Approach, another way of avoiding litigation

Rather than starting your legal matter with a lawsuit, great lawyers often suggest to their clients to start their matter using the “velvet glove” approach. They do this by first contacting the opposing party to see if the matter can proceed in a different way.  They do this by sending the opposing party or their lawyer a letter that suggests avoiding litigation as a starting point. 

Some lawyers call this correspondence an “Invitation Letter.” Even when the level of conflict is fairly high, the Invitation Letter suggests that a party is interested in avoiding litigation. The Invitation Letter can get the negotiation process rolling by suggesting other methods of dispute resolution such as mediation, a Judicial Case Conference, or a 4-way meeting. It also sets a tone of cooperation the way litigation does not. 

5. Choose a Lawyer That Not Only Has Courtroom Experience, But has a History of Resolving Disputes

The best divorce lawyer is not only a great advocate in the courtroom, but they are also not afraid to negotiate awesome settlements for their clients. 

You want your lawyer to be a strong advocate for you who understands what you want and what your rights are. You also want them to be able to tell their clients clearly what their obligations are. You also want a lawyer who will not be pushed around by another lawyer to your detriment. 


Written by Val Hemminger, lawyer at Hemminger Law Group Westshore.

Hemminger Law Group Westshore - Lawyers with heart! Providing Family law and Personal Injury law services to the Westshore and beyond (Langford, Westshore, Colwood, View Royal, Sooke, and Victoria)!