The only way legal disputes ever seem to get resolved on TV or in the movies is in court. That’s understandable, because the other ways we resolve legal disputes are, well, boring. I don’t think we are ever going to see a prime-time legal drama about people going to mediation.
However, the emphasis the media places on the courtroom gives the impression that litigation is sort of a default. Litigation is often the first thing people think of when they are in a jam. “I’ll see you in court!” is a really satisfying response to a problem. However, the available research suggests that resolving a problem in court is actually the most expensive, most time-consuming and least efficient way of going about it.
Negotiation, mediation, arbitration and parenting coordination are all important parts of our legal system.
Finding other ways of resolving legal disputes is especially important for disputes about family law problems. In other areas of the law, the people involved in a dispute – the parties to a dispute – are usually strangers to each other. They did not have a personal relationship before the problem arose and will have no significant continuing relationship afterwards. The problem they are arguing about – whether it is about a car accident, an unfair firing or breach of a contract – often finished a long time ago. Once the legal dispute wraps up, the parties will not have anything more to do with one another. Ever.
Things are different with family law problems. The parties were, and continue to be, in an intimate relationship with each other. Whatever the problem was that first provoked the legal dispute, there is never really an end point. The parties will be dealing with each other for many years to come. The final order they get at the end of their trial isn’t really final. It just lets everybody take a breath before the order needs updating.
The other big difference between family law problems and other legal disputes is that the conflict takes a toll on more people than just the parties. Conflict between parents can have profoundly significant short- and long-term impacts on children in particular. I don’t really care how mad you are with your neighbour, the person who hit you with their car, or the employer who fired you. Get as mad as you’d like. But I do care if the person you are mad at is the other parent of your children.
Other Good Options
However, we have options for resolving family law problems other than going to court. A lot of really good options, in fact. These options largely focus on cooperation and consensus rather than opposition and obstruction. They are about building bridges rather than walls. They encourage parents to work together to find solutions that work for them and their children. And along the way, they usually wind up taking some of the sharp edges off the emotions that promote conflict.
Negotiation, mediation, arbitration and parenting coordination are all important parts of our legal system. They are effective alternatives to litigation, and are almost always cheaper and faster than going to court. However, everyone involved in a legal dispute has to agree to use negotiation, mediation, arbitration or parenting coordination to resolve their problems. No one has to agree to litigate. If someone is dead set on taking you to court, you may have no choice but to participate in the litigation process until you can convince them to try something else.
Negotiation is something you can try with or without lawyers. We negotiate disagreements every day, from little things like what we will make for dinner with our spouse to big things like a raise or a promotion we want from a boss. Negotiation is a bargaining process in which each person gives things up to get things in return. You might really want to get $150 for your used printer on Kijiji. But if the only person who expresses interest offers you $100, you have the choice of negotiating a different price (something less than $150 but more than $100) or not selling your printer at all.
It works the same way for family law problems. Each parent has a different view about:
- what parenting arrangements are best for the children,
- whether spousal support should be paid and, if so, how much should be paid, or
- how property should be divided and shared.
What is really important to remember, however, is that negotiation is a process of give and take. No one should expect they are going to get all they want while compromising on nothing that the other person wants.
Collaborative negotiation is ordinary negotiation on steroids. Sometimes it is called “collaborative law,” even though it’s not a kind of law. In collaborative negotiation, each party hires a lawyer specially trained in the collaborative approach. The lawyers and their clients work toward settlement by taking a team approach – voluntarily exchanging the information that is necessary to help everyone find a mutually-acceptable compromise.
Collaborative negotiation is ordinary negotiation on steroids.
Because family law problems are complicated and often involve powerful emotions, the lawyers may sometimes recommend the involvement of other professionals:
- Coaches are counsellors who work one-on-one with each party to help them cope with the breakdown of the relationship and the emotional hurdles to settlement.
- Children specialists are mental health professionals who might be called in to give advice about the best parenting arrangements for the children or to discuss how the kids are dealing with their parents’ conflict.
- Financial specialists include valuators, appraisers and accountants. They are often asked to help figure out complicated tax problems or determine the value of property.
Apart from the team approach, the other thing I really like about collaborative negotiation is how it tries to look after the emotional needs of family members as well as their legal needs. Collaborative negotiation aims to resolve peoples’ legal disputes while leaving them as psychologically and emotionally whole as possible.
Mediation is negotiating with the help of someone else, a neutral person called a mediator. The mediator’s job is to help the people involved in a dispute talk to each other. They help to identify areas of potential compromise and different alternatives that might lead to settlement. Like negotiation, there is no requirement that a lawyer represents you when you are using mediation to resolve a problem.
Many but not all mediators are lawyers. Lawyers who mediate tend to play a more hands-on role and will at times offer their opinion about the strengths and weaknesses of a particular position or option for settlement. Mediators who are not lawyers do this a lot less. While they are also interested in moving the parties toward settlement, they are less pushy about it and are prepared to take a lot more time exploring alternatives and the parties’ opinions and feelings about those alternatives.
Arbitration sticks out from these processes like a sore thumb. Unlike negotiation and mediation, arbitration is a lot like court. In fact, it is court. Except that it is fast, you get to pick your judge (the arbitrator) and you get to work with the arbitrator to design your dispute resolution process. Arbitration is good when you know you are going to need someone to step in to make a decision for you, but you don’t want to spend the time and money going to court. Arbitration also has the benefit of being completely private. You will never need to worry about a grade ten civics class doing a court tour and interrupting your cross-examination, nor about a reporter from the National Post pulling your court file.
Arbitration is good when you know you are going to need someone to step in to make a decision for you, but you don’t want to spend the time and money going to court.
What I like best about arbitration is how the parties can pick the process that works best for them and their dispute. You do not need to have oral evidence from witnesses if you don’t want to. Maybe you can resolve your dispute with written evidence, or maybe you don’t need any evidence at all. Maybe you need to have oral argument, or maybe written submissions will do. If you need a hearing (and not all cases do), maybe you don’t need to attend in-person but can do it all through videoconferencing. There are also many options for dealing with exchanging documents and information before the hearing, and about how the parties must cooperate to produce records and information for the hearing process itself.
You do not need a lawyer to represent you if you decide to resolve your problem through arbitration. However, a lawyer can be a good idea if the law or the processes you choose are complicated. Some arbitrators also prefer to handle disputes between people who have lawyers. It is easier for the arbitrator because, among other things, they can usually rely on lawyers to do the heavy lifting – explaining legal concepts and describing the benefits and disadvantages of different approaches to the arbitration process.
Remember that when you take a problem to arbitration, with or without a lawyer, you are giving the power to make a decision to someone else – your arbitrator rather than a judge – and you are taking it away from yourself. In negotiation and mediation, the people with the power to resolve a dispute are the people involved in the dispute; it’s up to them and no one else to create their own resolution.
Finally, I’ll say a few things about parenting coordination, a hybrid of the processes used in mediation and arbitration. Parenting coordination is for parents who just simply cannot get along with each other or agree on basic parenting decisions. The parents best suited for parenting coordination are the people who were in court a handful of times before trial, about critical life-and-death parenting problems and those verging on the trivial, and are likely to be in court a handful of times after trial as well.
A parenting coordinator might be a lawyer or a mental health professional. In the traditional model of parenting coordination, the parenting coordinator helps parents implement the parts of an order, award or agreement dealing with the parenting of the children. When a problem about parenting comes up, one or both of the parents contact the parenting coordinator. The parenting coordinator tries to work with the parents, build consensus and resolve the problem using a process a lot like mediation. If the problem is urgent or agreement cannot be reached, then the parenting coordinator will resolve the problem by making a decision, using a process a lot like arbitration. Whether by the parents’ agreement or the parenting coordinator’s decision, the problem gets resolved.
Parenting coordinators normally do not deal with child support, spousal support or dividing property. They cannot appoint or remove someone as the guardian of a child, or make permanent or long-lasting changes to the children’s parenting schedule. They can resolve a whole bunch of the issues that drive parents back to court. Parenting coordinators work with parents to resolve disagreements about childcare, health care and education. They can help with choices about children’s participation in extracurricular activities, language instruction, diet, religious instruction and, if necessary, haircuts, piercings and tattoos.
Along with this sort of bread-and-butter dispute resolution, parenting coordinators also work with the parents to improve their communication and problem-solving skills. The parenting coordinator helps the parents recognize the needs of their children and put those needs ahead of their own, and to recognize the triggers that cause conflict. No parenting coordinator wants a permanent job stick-handling a family’s disagreements. This extra work is intended to help parents resolve future parenting problems on their own, without calling on the parenting coordinator.
Give Them a Try
Litigation is very satisfying, at least at first. It feels good to sue the person you are mad at. The black-and-white world of the courtroom seems to reduce complicated problems into comfortable, reassuring narratives of good versus evil and truth versus fiction. However, real life is rarely this simple, especially in family law cases. (Most mediators and arbitrators will tell you that their work is really difficult because they deal with feelings as well as facts and emotion alongside evidence. Black and white is not a thing for mediators and arbitrators.) If you can admit that there are two sides to every story, even when it comes to the stories in which you play a leading role, you should consider trying to resolve your legal problems another way.
Negotiation, mediation, arbitration and parenting coordination may not make for good television but they are all faster, cheaper and more efficient ways of resolving family law disputes than litigation. The research I mentioned earlier also supports the idea that collaborative negotiation, mediation and arbitration are all more likely to produce resolutions that are:
- longer-lasting than the results produced by litigation,
- more satisfactory to the parties than litigation, and
- in the interests of the parties and the parties’ children than litigation.
Try something different.