Earlier this year, the federal government’s amendments to the Divorce Act came into effect. These substantive changes — the first in more than 20 years — signal a distinct shift away from the adversarial nature of litigation in an effort to make the family justice system more accessible and efficient.
As of March 2021, family lawyers have an obligation to encourage clients to solve issues through a family dispute resolution process unless it would be inappropriate. As a family law litigator and mediator, I frequently discuss alternative dispute resolution (ADR) with my clients because I know how well it works.
There are different approaches spouses can take to make decisions about issues related to separation or divorce, including mediation, negotiation, arbitration, collaborative law and parenting coordination. But, it can be intimidating to consider these alternatives if you’re not familiar with the family dispute resolution process.
What is the family dispute resolution process?
The amended Divorce Act introduces a new concept — the family dispute resolution process — an umbrella term to describe out-of-court methods spouses can use to solve parenting, support or property issues. These different approaches (mediation, negotiation, collaborative law and arbitration) are also known as alternative dispute resolution (ADR).
One of the most popular approaches is mediation where a neutral third party, a mediator, helps parties identify and discuss parenting, separation, or divorce issues and resolve their differences. The goal here is to communicate effectively to try and reach an agreement both sides can accept. A mediator doesn’t make decisions for you but instead helps identify issues and possible solutions.
Why avoid the courtroom?
Mediation has generally been a less expensive and faster way to reach an agreement or resolve a family law dispute. In light of the court closures, backlogs and delays caused by COVID-19, the time and cost savings associated with mediation are undeniable.
I recently scheduled a case conference on a non-urgent matter, and the next court date available was in August 2022. Most cases don’t involve an urgent matter, so waiting for 10 months or longer to get a child or spousal support order is not sustainable for most clients.
It’s not only the time but there’s also the cost. For example, bringing a motion can start at $5,000 and run upwards of $20,000 — and that’s typically one day in court where a judge will decide on one issue temporarily. That’s a lot of money to determine if and how much child support someone should be paying or to decide an interim parenting arrangement that is likely to change as the children get older.
Even if litigation is ongoing, couples always have the opportunity to deal with some issues outside of court for a fraction of the cost. Clients sometimes think that once they start litigation, everything else is off the table. But it’s not an all-or-nothing proposition. If you’re in litigation and mediate even one issue, that’s one less issue for a judge to decide. Incorporating mediation into your litigation will have enormous time and cost savings.
Another important benefit of mediation is that it can preserve relationships, which is particularly important when there are children involved. Affidavit and court applications lend themselves to listing negative things about the other person and make it harder to have an ongoing co-parenting relationship.
Courts are not designed to deal with issues in the customized way mediation does. Generally, a court is meant to give broad orders — for example, what days of the week a child will stay with each parent. With mediation, there is a chance to be more specific and fine-tune the parenting plan, including setting clear boundaries around communication or the day-to-day care of your children. The more detail in the agreement, the less likely there will be conflicts in the future.
Is mediation for everyone?
By legislating lawyers to discuss the family dispute resolution process, the federal government is signalling that court should be a last resort and only used when ADR isn’t appropriate.
When I first meet with a client, I determine if there are any urgent issues, and then we explore if there’s an interest in mediation. As an experienced family mediator, I know first-hand how well the process works, but both parties must be willing to compromise.
Although it might not be appropriate in some family violence cases, mediation can work for high-conflict situations or relationships with a power imbalance. The process can work effectively and safely because of the ability to design a mediation that addresses the power dynamics.
One way to do that is through shuttle mediation, where you and your former partner do not need to be in the same room or even on the same Zoom screen. Essentially the mediator shuttles back and forth between parties, so there’s no need to meet or discuss issues face-to-face. This method may even deescalate conflict because the louder person can’t dominate the conversation or bulldoze the quieter spouse.
We’re about 7 months into the Divorce Act changes, so it will be interesting to see if more clients are open to mediating and settling their family law cases out of the courtroom. If you would like to schedule a consultation to discuss if an ADR approach suits your unique family circumstances, please contact me.