One of the first decisions to be made by people going through a separation is: which process should I use?
There are so many options: lawyer-negotiations; litigation; mediation; collaborative law; arbitration; parenting coordination, and various combinations.
I am spending the month of January teaching law students at the University of Western Ontario how to help their clients make this important decision.
The Divorce Act requires lawyers to advise their clients about negotiation as an option, and also about available mediation services.
But how does a lawyer know, at the initial interview, whether his or her client is a good candidate for mediation? Or for collaborative law or arbitration?
How can a client assess which process is likely to yield the best outcome for him or her?
The answer depends on many factors, including the client’s goals, personality, and the merits of his or her case. But more importantly, it depends on the nature of the relationship between the parties and any other factors that might affect the balance of negotiation power between the former spouses.
How do the parties communicate? How do they resolve disputes? Is there an element of control or coercion in the relationship? Is one of them afraid of the other? Is there a history of mental illness or drug/alcohol abuse?
Of course, each lawyer can ask his or her client a series of questions. But research shows that parties often do not disclose such details to their lawyers, for many reasons. And, as a mediator who used to act as a lawyer, I know that each person’s story is going to be very different. The only way to get the full picture of the negotiation dynamic is to interview both people (separately.)
This is what is known as “screening”. It would be ideal if the first stop on the family dispute resolution road was an independent third party ‘screener’, who would help the parties choose the process that will be best for them both. Such screeners are already used for arbitration, now that screening is required before anyone can begin a family arbitration case. And most family mediators conduct some form of screening. But screening is not mandatory for other kinds of dispute resolution processes.
Most lawyers however have taken some form of mediation, collaborative or screening training and know the questions to ask their clients. And clients are also increasingly informed about the different process choices available and know to ask questions.
Making the wrong process choice can have devastating impact on the client. For example, once a client agrees to arbitration, they cannot change their mind and the client can end up in a lengthy, expensive and complicated private process that they did not expect. Once a client agrees to mediation, they are expected to be able to have sufficient information to negotiate for themselves, with or without a lawyer, and may end up feeling pressure to settle before they are ready or for an outcome they do not really want. Once a client chooses collaborative law, he or she cannot then change their minds and ask their lawyer to go to court for them and may end up funding a long and costly negotiation that yields no settlement.
Each process choice has its merits and its risks. The time to ask many questions, conduct a comprehensive analysis of the case and consider all options is when the client first walks through the lawyer’s door and before any process choice is made.
And, once the choice is made, is should be re-evaluated often.
Family law cases, like all disputes, are inherently unstable and unpredictable things. What a client wants at the beginning will almost always change as the case unfolds; and the appropriate dispute resolution mechanism is likely to change as well. This explains why so many clients start with one process and end with another. This should not be seen as a failure of the first process, or bad legal advice at the start of the case– but rather proof that the dispute is evolving as it should.