The court process is based on a war model that pits ex-partners against each other to produce a winner and a loser. This approach increases conflict, polarizes the parties, and can destroy their ability to co-parent their children after divorce. Court is slow and expensive — $50,000 per person on average for a three-day trial. Although most family-law cases settle, they do so after much money has been spent and emotional trauma endured.
But is court necessary to get a fair deal? Consider what we mean by “fair.” Since fairness is subjective, there is no guarantee that a judge’s sense of fairness will accord with yours. Fairness refers to both process and result. A fair process allows the parties to feel heard, to be treated with respect, not to be taken advantage of, and to have a say. A fair result meets the highest needs of each party and asks for reasonable compromises from both.
Your best chance of reaching a fair agreement by these standards is to stay out of court and choose collaborative law or mediation. In the collaborative process, both parties and their lawyers agree to resolve all issues without going to court; if they can’t reach agreement, both lawyers must resign — which means it’s in everybody’s best interests to reach an agreement. In mediation, the parties negotiate the settlement themselves with the help of a mediator.
Collaborative lawyers and mediators maintain a safe negotiating environment, promote effective communication, ensure that you have all the information you need, and help you reach a settlement that is acceptable to both parties. These processes are also quicker and much less expensive than court.
If there is a lack of basic honesty or goodwill, a history of violence, or a refusal to negotiate, court may be necessary, and the judge will do his or her best to hand down fairness as the law defines it. But being empowered to create a win-win settlement yourselves, by mediation or collaborative law, is the best way to ensure you achieve fairness as you define it.
Victoria Smith is a collaborative lawyer and mediator practicing in Peel Region and Toronto. She trains lawyers in collaborative law across Canada and is co-author of Collaborative Family Law, Another Way to Resolve Family Disputes.