When adults leave a serious relationship, they have a lot of decisions to make. Sometimes these are small decisions, about who can keep the dishes or the books, but more often they are big decisions. Things like where the children should mostly live, how their time will be divided, who should pay how much in support and whether the family home should be kept or sold. Decisions like these, and a few more besides, all fall under the umbrella of family law.
People are often able to resolve these decisions on their own, but when they can’t, they have a problem. Walking away from difficult family law disputes is rarely a good idea, as these disputes involve the most sensitive, most personal and most consequential legal issues there are, and the stakes are usually very, very high.
Earlier this year, the Canadian Research Institute for Law and the Family published the results of a study of family law lawyers’ opinions about resolving family law disputes through mediation, arbitration and litigation. Assuming you’re not going to walk away, there is yet another decision to make. How are you going to handle the legal issues you and your spouse or partner can’t resolve on your own?
Most people say that legal disputes are handled in court. That’s fair. Court is pretty much the only way you see legal disputes being resolved in the media. You can watch Judge Judy, Divorce Court and The People’s Court during the day, lawyer dramas like Suits, Law & Order and Boston Legal in primetime, or The War of the Roses, Kramer vs Kramer and Irreconcilable Differences if you want to go to the theatre. If you’d rather curl up in a reading chair, you can pick up Scott Turow’s Presumed Innocent, Michael Connelly’s The Lincoln Lawyer or pretty much anything ever written by John Grisham.
The usual alternatives to court include negotiation, mediation and arbitration. Negotiation is a bargaining process in which the people involved in a legal dispute, the parties, try to find ways they can each compromise and settle their differences. Mediation is a bargaining process in which a neutral third-party, a mediator, helps the parties talk to each other and identify possible solutions. Arbitration is a process in which a neutral third-party, an arbitrator, listens to each party’s evidence and arguments, and makes a decision resolving the dispute. Handling disputes in court is called litigation.
Court isn’t the only way to handle family law disputes. And, to be frank, it’s pretty much the worst way to handle most family law disputes.
Walking away from difficult family law disputes is rarely a good idea, as these disputes involve the most sensitive, most personal and most consequential legal issues there are, and the stakes are usually very, very high.Litigation is a complex, formal process in which disputes are resolved by the order of a judge, following a public trial. Litigation is governed by elaborate rules of procedure that are often written in language that is hard to understand and require the parties to fill out difficult forms that are also hard to understand. Fees are charged for almost every step in the litigation process, from starting a law suit to filing court forms, and include a special fee that is charged for each day of trial. Despite this, Canadian courts are very busy. It’s not unusual for family law cases to take two to four years to wrap up.
Negotiation, mediation and arbitration are informal, private processes that take place out of the public eye, in an office, a boardroom or a coffee shop. They’re also speedy, since scheduling a meeting for negotiation or mediation, or a hearing for arbitration, is just a matter of picking a day that works for everyone’s calendars. And since they’re speedy, they’re also usually cheaper than litigation.
Earlier this year, the Canadian Research Institute for Law and the Family published the results of a study of family law lawyers’ opinions about resolving family law disputes through mediation, arbitration and litigation. Although almost all of the lawyers it surveyed used litigation to resolve family law disputes, almost all of them preferred not to litigate. The lawyers said that:
- litigation costs more than mediation and arbitration, even in high-conflict disputes;
- the results they achieve through mediation and arbitration were much more likely to be in the interests of their clients, and their clients’ children, than the results they usually achieve through litigation;
- their clients are more satisfied with the results they achieve through mediation and arbitration than through litigation;
- the results they achieve through mediation and arbitration last longer than the results they usually achieve through litigation;
- resolving disputes through mediation and arbitration makes it easier for their clients to cooperate with each other in the future than litigation; and,
- litigation takes more than twice as long to wrap up a family law dispute than mediation and arbitration, and can cost up to twice as much.
Almost four-fifths of the family law lawyers surveyed agreed that mediation is usually cost-effective for their clients, and more than three-fifths said that arbitration is usually cost-effective. On the other hand, almost all of the lawyers surveyed, 87.1% of them to be exact, said that litigation is not cost-effective!
Although litigation has its place — you may have no choice but to go to court, at least at the beginning, if someone is making threats to destroy property or leave the country with the children — it’s not necessarily the best option. If you’re concerned about the length of time it will take to get into court and the amount of money litigation will cost, you owe it to yourself and to your children to think about another option.
I’ll write about mediation and arbitration, and a process called parenting coordination that uses elements of each, in more detail in future articles.