Happy Spring Time! I’ve written today’s article from the perspective of having represented a party in a recent Court battle regarding the custody and access of a young child. My client was the father and we won three consecutive Court Orders granting him the custody of his child. A victory to be sure! However, I want to address here some of the downsides of spouses battling in Court.
It’s been a while since I decided to take on a Court matter, and I was astounded at the number of deadlines, rules and forms that today’s Courts require for the stated purpose of “making Court easier for the ‘unrepresented litigant!’” In fact, it’s just the opposite!
Having focused my law practice for many years on mediation, collaborative law and peaceful negotiation, the contrast with the Court process was starkly evident. In mediation, there are no court orders in mediation. The parties, with the help of their mediator, work to reach an agreement they both can live with. The only deadlines are those the parties themselves agree upon. The only rules are those of civility and respect: “Try not to interrupt the other person when he/she is speaking.”
The research shows that Alternative Dispute Resolution (ADR) processes have a much better effect on the children than Court. Many will remember the Toronto Life article: “The Divorce from Hell” where, after a many-years custody battle, the children refused to talk to either parent. This is not unusual when parties litigate their Divorces in Court.
When I act as a mediator, I continue to use my lawyer expertise in the mediation, providing a wealth of legal information to both parties that each party would be receiving from their separate lawyers. While stopping short of giving legal advice (not allowed by Law Society Rules), I go very far in providing detailed information to the parties. Also, I work with them to help them prepare the financial disclosure necessary in family law cases. The result is a considerable cost savings to them. Coupled with keeping the communications on track, I provide the parties the tools they need to negotiate the issues involved – both legal and non-legal – when people separate.
In contrast, the Court process is often ‘user unfriendly!’ Legal fees escalate to the point of being ultimately unaffordable for the not-wealthy client.
It’s well-known that ‘95% of cases settle at the Courtroom Door,’ just before the trial starts. A major reason is that, by the trial date, each party has spent many thousands – even hundreds of thousands – of dollars in legal fees. This creates a big incentive for them to settle their matter now as, looking ahead, there will be a lengthy trial of a week or more, which will add more legal fees. In addition, there’s a risk of the winning party being awarded costs by the trial Judge. This adds an additional cost burden on the losing party to pay his/her spouse, in addition to their own legal fees.
By the end of the litigation, people are depleted both financially and emotionally; and their children often become alienated from both.
So, I say that, instead of spending all that money ( and time; sometimes years) to get to trial and then settling, why not replace that with a much more cost effective process such as mediation, where the parties can settle much earlier.
Despite having won three consecutive Orders in my client’s favour in my case, I noted that my client still wasn’t happy. This reminded me of my previous court days (in the ‘vineyards of Family Law!’)spent at 145 Queen Street (now the beautiful Opera House!). A major reason why 20 years ago I decided to change my practice focus to Mediation, was that it was clear that, even when my clients won, Court was a no-win for them. This was due to the costs – both financial and emotional – of the Court process.
At a collaborative law dinner I attended, the speakers – two Judges – said that they wanted more collaborative lawyers to do Court cases, as ‘it would be good to have these kinds of lawyers in the Courts.’ This was also in my mind when I embarked on my recent Court case. I note that, on the third Court date, we had a Judge who was very supportive of using alternative dispute resolution (ADR). When we finally got into the Courtroom, there was a discussion of the parties’ substantive issues e.g. custody, resolving access terms, etc. However, the costs, barriers, rules, papers and deadlines required before we were able to get before the Judge, were beyond belief. In the Courts today, it seems that ‘Process trumps Substance.’ By the time the parties get to the Courtroom door, they are drained due to the never-ending process requirements. It’s only once they get into the Courtroom that their substantive issues are finally addressed.
Of course, in some cases Court is the only option. In my recent case, the father – on my recommendation – initiated the Court Action as it was his only option under the circumstances.
Also, it’s important to note that Mediation is not for everyone. In some cases Mediation is not a viable process for parties. (More about this in a future article).
The decision as to whether to use mediation in one’s divorce should be made with the help of an initial consultation with a lawyer, whose legal duty it is to advise clients about the various ADR processes available to parties as an alternative to Court.
In conclusion, if spring finds you or someone you know entering the gates of divorce (hopefully not to be confused with other gates!), I suggest that you consider using the mediation process as a positive, more civilized, more child friendly and much less expensive way to divorce!
Until next time!
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
© Anne E. Freed, March, 2019