The Family Law Act requires two things from lawyers and other family dispute resolution professionals.
First, they must assess whether or not family violence may be present.
Second, they must discuss the advisability of resolving the family law dispute via mediation, arbitration, or any other out-of-court process, and inform the party of the facilities and resources that exist in that regard.
In fact, Division 1 of Part 2 of the Family Law Act begins with the exact words: “Resolution Out of Court Preferred.”
Accordingly, my question to family lawyers and other family law dispute resolution professionals is as follows: Are you actually meeting both of these requirements?
And my question to those individuals who are involved in a family law dispute is: Did your lawyer and/or other family dispute resolution professional advise you properly? Did they talk to you about family law mediation, arbitration, and other out-of-court options?
Sadly, my guess is that many lawyers have not actually met their obligations in this regard. In fact, even when I was practicing law, I also did not always meet this obligation.
While I am certain that I always touched upon the family violence screening requirements, I honestly cannot remember a single instance when I really and truly advised my former clients about the many out-of-court options that not only exist but, in fact, often result in much faster, much better, much less expensive, and much more satisfying outcomes for families in conflict.
So why is that?
I believe that it is because as lawyers, we are trained from day one (starting in law school) that the practice of law is a fundamentally adversarial process. And more to the point, that actual justice can only be achieved, and the best interests of our clients can only be advanced and protected, by aggressively pursuing an adversarial role.
How then to reconcile this aggressive warrior advocate role with the idea of seeking resolution instead, and as a first step, through an out-of-court process such as mediation? A process that seeks to find common ground and real resolution through communication rather than combat?
It is a foreign concept to most trial lawyers — and it certainly was to me.
And yet, not only is it required by the Family Law Act in British Columbia, but numerous academic and scientific research projects have concluded that it is universally in the best interests of every member of a family in conflict – from the warring spouses themselves to the children who experience the collateral damage – to resolve their family law dispute(s), out-of-court, through the process of mediation, arbitration, or the uniquely combined med-arb.
Not only that, but the statistics also show that when used, Family Law Mediation in BC is incredibly successful, with over 78% of all family law disputes being fully resolved in a total of three mediation sessions or less!
Compare that to the vast amount of time, and the incredible expense (both financial and emotional) that the courtroom process inflicts upon families in distress – likely because of its very adversarial nature.
In matters of criminal law, corporate litigation, personal injury, and other situations where the players and parties are truly at war with one another then, yes, perhaps the warrior adversarial process is warranted as the best means to achieving justice.
However, family members (and in particular, parents and their children), are not and should not be the sworn enemies of one another – even when the primary spousal relationship has crumbled beyond repair.
The adversarial process that exists in the courtroom is not meant for families. The Family Law Act says so. And so does common sense.
I am very grateful that my own perspective on family justice has now fundamentally changed. I not only see and value the incredible benefits of Mediation, I have also changed my entire career path because of it.
If you are in the midst of a family law dispute – divorce, separation, child care and custody, support, division of property or debts, etc. – and you have not considered mediation or other out-of-court options to resolve your conflict, then you owe it to yourself, your children, and your well-being to do so.
If you have a lawyer or other family law dispute professional guiding you on your way, then they also have an obligation to honestly consider and discuss it with you.
Thankfully, as an accredited family law mediator – who also used to be a divorce and family law lawyer – I am also here to help.
At ClearView Conflict Resolution, we know how important this decision is, and we will take the time to explain your options to you.
Going to court should always be the option of last resort. Please talk to us first about how to make the best choice for you and your family.
Glen Evans – BA, MFA, JD, Q.Arb, Accredited Family Law Mediator