Divorces can be settled outside the courtroom
Divorces can be settled outside the courtroom
The general public believes that divorce is a legal problem that can be resolved inside a courtroom. When spouses separate, the first call they often make is to a lawyer. The idea is that a lawyer presents the case to a judge and then the judge formalizes the end of the marriage with a divorce. Technically, this is correct.
The formal process to terminate a marriage is a Divorce Application that is ultimately decided by a judge. What most people don't know is that divorce is the simplest task in family law. This is because every married spouse in Ontario who has been separated for one year qualifies for divorce.
Corollary issues are the most problematic in a divorce proceeding
What many people are not aware of is that the real issues that require professional help are not the actual divorce, but rather the consequences of divorce. These are called corollary issues and include custody of children, support, and property division.
Often the subject of parenting is what leads to the greatest conflict, litigation, and cost in a divorce proceeding. The reason for this is the absence of agreement among the parents regarding their children's lives following separation.
The level of disagreement over the children's relationship with each parent after divorce is what generates the most work for family law lawyers and judges.
For some reason, although incorrect, most believe that the solutions are located inside a courtroom. Yet these courtroom professionals do not really know the family. They have spent very little time with the two parents together. The little time spent together is stressful and emotionally laden. It is not a true reflection of the family. That is because the legal system frequently, though unintentionally, positions each parent against the other.
The courtroom is an uninviting, tense, and cold arena to explore solutions to marital dissolution and family conflict. Yet, the average spouse continues to believe that their problems should be solved in court.
After decades of lawyers and judges grappling with the consequences of separation and divorce in court, they realized that the courtroom is the wrong place to manage family breakdown. These professionals have witnessed families at war, children suffering from parental conflict and the family's life savings evaporate.
It is these same professionals who have devoted their careers to family law, and who have earned their living from assisting families through a divorce in the court system, who have also established a better way for families to navigate their divorce and to help ensure that the often avoidable collateral damage to children can be minimized or avoided altogether.
Using Alternative Dispute Resolution (ADR) to manage transition from divorce
Mediation and mediation/arbitration have been successfully used to assist families to transition from married life, through to separation and then divorce. These options for families are regarded as “alternatives” to court. In fact, they fall under the field of law called Alternative Dispute Resolution (ADR).
The problem however is that the public continues to perceive that all parts of divorce are legal problems that are, or must be, resolved in divorce court. Consequently, the idea has emerged that the court is the primary choice for divorcing spouses, and anything else is an "alternative".
The exact opposite is true. Mediation and mediation/arbitration are processes to resolve family breakdown that are family-focused, child-centric, collaborative, less expensive, solution-oriented, voluntary, client-directed, and efficient. Most importantly, these alternatives to court provide families with the opportunity to have more control over their lives going forward, as opposed to litigation where all control is delegated to a judge who has no prior knowledge of the family.
Other ADR processes for families include neutral consultation and evaluation, assessment, education, lawyer-supported negotiation, and post-settlement parenting coordination. ADR can assist spouses at a moment in time, or at many different stages of their post-separation lives. ADR can be used with no court involvement, before court, during a court case, and even during trial.
ADR permits the spouses to design a process that provides mechanisms for the resolution of future disagreements too. ADR is the most malleable, accommodating, and reasonable process to resolve a family law case, especially one involving families who will need to maintain a relationship for decades to come.
In Mediation and Mediation/Arbitration, each parent is central to the identification of the issues, discussion of the problems, and the development of the solutions. There are no judges, just very experienced legal (and mental health) professionals that educate, guide, and navigate dialogue towards settlement.
ADR fosters safe communication. The goal includes helping to ensure that once the ADR process is complete, the family may continue their lives in a healthy, safe, and child-focused manner. Divorce court is the exact opposite. Relationships can be forever and irreparably destroyed.
The biggest obstacle to the use of ADR remains the incorrect assumption made by the public that divorce is a legal problem that MUST be resolved by lawyers and judges. As a society, we are nearing the day when people appreciate that divorce court is not the preferred forum to manage family break-up.
One day, divorce court will be the "alternative" to ADR, the final alternative.
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