Family Law: To Litigate or Mediate, that’s the Question

Here’s the link to an interesting feature that appeared in the Toronto Star on May 8th.  The headline says it all: “1 divorce: 54 hearings, [6 years] 5 judges, $200,000 “.  It highlights a specific divorce case to make the point that Ontario’s family court system is broken and needs to be fixed.

Attorney General Chris Bentley has been meeting with family law experts for their advice on fixing the system. He says a first step was the passage this week of Bill 133, which deals mainly with a fairer division of pension assets and protections for victims of domestic abuse.”

[. . .]

But nothing in the bill, says a frustrated Epstein [a divorce lawyer], deals with “the systemic problem of an under-resourced and over-populated family court. We’re at a crisis point where some courts are simply so bottlenecked that there’s no reasonable access to justice. The system is collapsing from within because there are too many cases and not enough resources, and because the government has not been innovative in streamlining the system.”

On May 10th, the Star published a letter to the editor from sociologist Desmond Ellis of the LaMarsh Research Centre on Violence and Conflict Resolution at York University.  In his letter, Ellis decried “the uncritical acceptance of the notion that more judges and court resources will solve problems relating to delay, cost, custody battles and the parental alienation of children.”  He goes on to assert that divorce mediation is an alternative (emphasis added) to litigation and, according to various studies, “[…] is safer, less costly, speedier and more likely to de-escalate conflicts over custody, financial support and access. […] In short, divorce mediation transforms a tug-of-war into a tug toward peace.”

In my view, in order to be a real alternative to litigation, a divorce mediator seeks to transform “a tug-of-war” into a productive (but not necessarily amicable) conversation between the parties.  If in the course of their conversation, the parties decide themselves to start “a tug toward peace”, then so be it.  The role of the mediator is to help them have a conversation where they can get clearer about the choices they face and ultimately make their own decisions about how they wish to handle their differences.  The more activist and directive the mediator is in ‘a tug toward peace’, the more the mediation process becomes less of a true alternative to litigation.  The mediator then becomes a party to the  conflict with her own implicit interests, namely to reach ‘peace’.  And this, as feminist critics of mediation have long pointed out, without legal guarantees of court procedure, rights and case law precedence.  So in some cases, where the parties are unable to shift in their conversation from confusion to clarity and from self-absorption to recognition, mediation is not feasible and recourse must be had to other options, such as but not limited to litigation.

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  1. Pingback: Family Law, Atlanta Divorce Attorneys and Lawyers | Atlanta Georgia Divorce Lawyers

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