Saturday, May 26, 2012

A Practical and Economical Approach to Resolving Family Law Disputes

In recent years policy makers, jurists and family law lawyers have commented on the significant and profound problems in our courts with respect to family law matters.  Delay and the ever increasing cost of the litigation of these type of legal problems has resulted in a situation where more and more individuals have resorted to self-representation.  This ever increasing incidence of self-representation understadably contributes to the inefficiency both in terms of the lenght of time these disputes take to resolve themselves and in the quality of outcome which the parties obtain from the process. An ever increasing number of family law litigants are finding that the aftermath of the resolution of their family law disputes is a significant decrease in their networth.

Litigation is a poor method of dispute resolution of any form of dispute but is especially ill-suited for family law disputes.  Litigation by its very nature is adverserial and concerned primarily with asserting and establishing an entitlement to something - be it a right under an insurance policy or the right to compensation for the improper use of a trade name.  In each of these examples there are two generally unconnected parties asserting a right against the other. The dispute is generally transactional in nature - meaning other than the dispute that is the subject of the litigation they do not share any relationship of possible contining social or familial ties with each other.  The family law dispute is not transactional in nature but involves the resolution of a conflict that understandably evokes strong emotions of unfairness, hurt, hatred, revenge and the like.  Litigation should be the exception rather than the norm for the resolution of these types of disputes.  Many will rememember the hollywood movie - The War of the Roses.  That movie - while a tat extreame - shows how litigation of these diputes can take on a life of its own !

Importance of party control
over the process:

In order for parties to a family law dispute to derive maximum satisfaction from its resolution it is vitally important that they - as much as possible - have control over the process.  It is this lack of control which makes litigation ineffective for the resolution of these types of disputes.  Many family law litigants that I have spoken to have expressed this sentiment.  I have spoken to a few who were not even aware that they could negotiate a settlement of the dispute.

Offer to Settle:

A party that is interested in bringing a family law relationship to an end would be better served by initiating the process by seeing a lawyer and delineating their needs and interests and putting forward a formal offer to settle to the other party.  The parties could then speak between themselves in an effort to narrow the issues or the other may elect to seek legal representation with a view to negotiating a resolution to their differences.  Settlement and agreement is the vehicle throught which these type of disputes resolve themselves with maximum satisfaction for the parties.  Critics may say that this apporach is simplistic but those critics lose sight of the fact that an offer to settle is a vehicle to initiate a dialogue and immediately focus on the issuess which separate the parties.  The sooner in the process this is done the more likely the parties will reach a mutually agreeable settlment.

No doubt there will always be cases that warrant litigation.  However, the solution to the problems with family law litigation in Ontario ought to start with a recognition that conventional litigation and the adverserial model is not an effective tool for the resolution of these types of disputes. 


No comments:

Post a Comment