By Josh D. Simon

As reported by the Toronto Star, Ontario Chief Justice Warren Winkler is adding his influential voice to a growing list of jurists on both sides of the border by warning that, when it comes to divorce, litigation should be the court of last resort.

And inspired by his desire for “a fresh conceptual approach to resolution of family disputes in Ontario,” Winkler is proposing mandatory mediation for all divorcing couples – a dramatic move that legislators in British Columbia are also contemplating, but that no province or territory has enacted.

“Only in the event that the alternative dispute resolution [mediation] process is unsuccessful would access to the costly, time-consuming, adversarial and sometimes acrimonious court process be available to litigants,” Winkler said in a recent speech to judges and other legal professionals to open the new 2010-2011 provincial court session.   

Initial reaction from some family lawyers, who as a group handle the 85,000 – 90,000 new family law cases in the province each year and attend over 300,000 family law hearings, could at best be summed up as cautiously optimistic.

While the horrors of litigation are well known and virtually no family lawyers would even think of endorsing a “court-first” approach to divorce, there is some worry over who would foot the bill; especially since some senior lawyers charge up to $600/hour for the mediation expertise.

Other family lawyers expressed concern that forcing couples into mediation could diminish its overall success rate, since early on in the divorce process spouses are often too angry with each other to cooperate and reach consensus – which is, ultimately, the cornerstone for  successful mediation.

Some have even suggested a “triage” strategy might be more effective, whereby couples are assessed early on and routed to the option (mediation, court, counselling, etc.), that is most likely to resolve their divorce in the most appropriate manner possible; or to paraphrase Winston Churchill's famous homage to democracy, in the least worst manner available.

Divorce Magazine will follow this issue and publish updates as they become available. 

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