Many people think that the courtroom is the place to finally bring justice — via the well-intentioned figure seated in black robes — to the injustice of their failed marriage. Unfortunately, it is often not like this.
Despite recent reforms aimed at rendering the divorce process less adversarial, it is still rooted in conflict where parties fight over their legal entitlements and obligations. Lawyers who call themselves “pitbulls,” as in Julia Macfarlane’s book “The New Lawyer,” engage in hard-fought negotiations seeking to gain an edge for their clients. The client waits nervously. And the judge, a stranger to the family, will impose an order that might not satisfy either party — or, that could make one a winner and the other a loser.
The emotional impact of separation on the parties and their children is difficult enough without compounding it through protracted legal processes. The financial impact is also enormous. Divorcing spouses pay their lawyers tens of thousands of dollars (or more) to litigate a process that often runs on for years.
Over the last 25 years, non-court alternate dispute resolution processes have evolved, such as mediation and collaborative law. A major step forward was achieved with the amendments to the Divorce Act that came into effect on March 1 of this year.
Under the previous version of the Divorce Act, lawyers were required only to inform their clients about mediation. Now, the act has added a new “duty” to consider and try to resolve disputes via a “family dispute resolution processes” which includes negotiation, mediation and the highly evolved collaborative negotiation system. This legislated obligation will serve to elevate our collective consciousness about best methods for resolving family conflicts.
Mediation and collaborative law processes are almost always faster and less expensive than court. They’re also less stressful on the parties, their children and other family members. Ultimately, they are much more likely to result in a resolution that both parties find acceptable.
This is especially true when an “interest-based” approach is used, such as in collaborative negotiations. Instead of jumping in with bargaining positions that pit the parties against each other, each spouse focuses on their own needs, desires and concerns but also those of their partner. Rather than a tactical battle over positions, they engage in a conscious, problem-solving process in which they examine why a need is felt, and whether they can find a way to satisfy that need without damaging the other spouse’s interests.
In this process, both parties can come away with their desires satisfied, avoiding the winner/loser mentality of positional bargaining and reducing the likelihood of future flare-ups escalating into new battles.
The new act also contains important factors to consider when deciding the best interest of children, including the nature and strength of the child’s relationships with parents, grandparents and other important people in their life. It considers the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage and the child’s views and preferences. Another significant factor is whether there was family violence, now defined more broadly to include threatening acts and a pattern of coercive and controlling behaviour.
This new wording around the important duty to consider and try dispute resolution processes as the first line of action comes at the same time as the new obligation in the Divorce Act to consider family violence when deciding on the children’s best interests. Making these two changes simultaneously clearly indicates a readiness to address these complex cases out of court.
Will clients and lawyers honour their new duties and alter a long-established practice of rushing to court at the first sign of a bump in the road? The new priority placed upon these techniques is designed to help many broken families achieve resolutions that truly address their concerns.
Collaborative practice is itself evolving to assist in the resolution of more complex cases. Collaborative associations offer the “Advanced Collaborative Professional” designation, which requires professionals to train in addressing family violence and imbalance of power. Accredited mediators receive similar training. Mediation and collaborative law can no longer be regarded as unsuited for cases involving domestic violence and power imbalances.
The changes to the Divorce Act are a sensible step in the evolution of family law. Fractured families have new hope of achieving resolutions that truly meet their needs while experiencing less stress, lower costs and a better chance for a future free of conflict.
The question is: with the conscience of the Divorce Act now elevated, what will it take for separating people and their legal professionals to follow suit?
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