For me, it is surprising that many people instinctively reach for the litigation ‘tool’ when a family or business dispute emerges.
However, litigation is almost uniquely unsuited to family law disputes.
The first courts as we know them were set up in the Middle Ages, and primarily dealt with criminal and civil / business disputes. The courts did and continue to deal with these areas of law very effectively – laying charges or claims, listening to evidence, and determining wrongs, and making a judgment.
However, particularly from the 1920s, family law disputes have been ‘shoehorned’ into that adversarial system. And the courts dealt with those new family disputes because that was the system that was available.
And so, children, and ‘rights’ to children became subject to an adversarial process involving parties finding and using as much negative information as they can about the other parent. Parents are criticized and belittled in the same way that criminals are cross-examined for their actions. Arcane rules of evidence are used against parties that do not have legal representation. And, at the end, a stranger to the parents determines what should happen to their children and finances.
Parties are emotionally destroyed, relationships with former partners are irretrievably burnt to the point that they cannot again work constructively together for their children, they are sunk with heavy legal bills at the point in their life when they can least afford it, and children often are the greatest casualty – acting out in school suffering from the psychological consequences of high-conflict between their parents.
It remains a mystery to me why the government supports and funds through legal aid this process.
There are many better tools that parties can use to resolve family or business disputes.
In fact, most workplace or separation disputes are resolved at an office table or at the kitchen table. In those circumstances, the parties may need a lawyer to legally draw up the agreement reached. Often, for example, we may be asked to draft a legally binding separation agreement for a separating couple.
Another tool is mediation. Sometimes, parties cannot effectively communicate together and a mediator can assist the parties in reaching an agreement. We offer accredited commercial and family law mediation, which has many advantages over litigation. Mediation is usually much more cost-effective, more amicable, and more private than litigation. Parties retain power over the process and the result, rather than delegating their life outcomes to a stranger (a Judge). However, this process does require each party to genuinely want to find a solution (some parties do not actually have this objective) and it does not work when there is a power imbalance between the parties.
Collaborative Law and Collaborative Divorce is a newer concept, which began in 1990 by Minnesota family lawyer Stuart Webb. Frustrated by the damage he saw in his family law clients caused by the litigation process, he worked with other professionals to find a better way. The result is often called the ‘gold standard’ in resolving separation disputes. In this approach, a team of professionals including lawyer / mediators, a divorce coach and often children and financial experts work with the parties to resolve the dispute – with a commitment that neither will resort to litigation. This team approach often has the highest satisfaction rating of all methods, and is usually also far more cost-effective and faster than litigation. We are accredited to participate in the collaborative law process and are members of the Collaborative Divorce Vancouver group.
Another tool involved using solicitor based negotiation. In this approach, solicitors for each party attempt to formally negotiate an agreement – either through written offers or a joint meeting. We also assist with this approach.
Arbitration is another tool, involving a nominated decision maker resolving matters in an efficient manner outside of the court process. While this process is more formal than other tools mentioned above, it is nevertheless less formal than litigation. The parties can choose their arbitrator, deliberations and determinations can be made privately, costs are usually clear, and decisions are usually faster than through a court process. We are accredited to undertake commercial arbitrations.
We accept that litigation is one tool that can validly be used to resolve disputes, particularly in cases where another party is unresponsive or does not genuinely wish to seek a resolution.
However, the above methods are our preferred approach to resolving disputes.